United States Court of Appeals For the Ninth Circuit

No. 9506

Gnited States yy, A,
Circuit Court of Appeals

For the Ninth Circutt. Z LY a

ILENE WARREN alias SPEED WARREN,
Appellant,
VS.

THE TERRITORY OF HAWAII,
Appellee.

Transcript of Wecord

In Three Volumes

VOLUME I
Pages 1 to 310

Upon Appeal from the Supreme Court

of the Territory of Hawali |

AUG J- 1940

PAUL P, O'BRIEN,
GLERK

on, A
PARKER PRINTING COMPANY, 845 SANSOME STREET, SAN FRANCISCO

No. 9506

Gnited States
Circuit Court of Appeals

For the Ninth Circuit.

ILENE WARREN alias SPEED WARREN,
Appellant,

VS.

THE TERRITORY OF HAWAII,
Appellee.

Transcript of Record

In Three Volumes

VOLUME I
Pages 1 to 310

eS Sa

Upon Appeal from the Supreme Court
of the Territory of Hawaii

PARKER PRINTING COMPANY, 545 SANSOME STREET. SAN FRANCISCO

INDEX

[Clerk's Note: When deemed likely to be of an important nature.
errors or doubtful matters appearing in the original certified record are
printed literally in italic: and. likewise, cancelled matter appearing in
the original certified record is printed and cancelled herein accordingly.
When possible. an omission from the text is indicated by printing in
italic the two words between which the omission seems to occur. ]

Page
Appeal:
JSST EVONOOLS MN GLE (ELE 0) Sea nanan Oren 8
CiaeHOl, Olli ka. 35
Designation of contents of record on............ 643
Worn oll cetera nese eee ener 7
Cider allow Qa cr
Petition for ‘usd. ea Pe
Statement Of POwMtS OV encccccceeccececerenseceen 643
Assignment of errors, dated Feb. 20, 1949, and
Filed Feeble, 20, 194.0. cecceeeceeeeennesecececenenemnetecentan 8
Attorneys, names and addresses Of...

Certificate of Deputy Clerk of the Supreme
Court of the Terr. of Hawaii to the tran-
script of record on appeal, dated April 18,

FRG 2 ac aeppesarttecantacnnncasetententeseeonenneen 36
Citation on appeal, dated and filed Feb. 21,

10 2 ee ene ere 35
Decision denying petition for rehearing... 669
Désignation of contents of record on appeal ee 643

Indictment for murder in the second degree,
dated and filed August 5, 1937... 1

Judgment of Supreme Court of le viadln.2 668

ll Tlene Warren vs.

Index Page

Names and addresses Of attorneys.iccecciccccscceccnen 1
Notice of appeal and order allowing appeal,
dated Febrrary 20, 1940, and filed Feb. 21,

1940 0... ee re q
Opinion of the Supreme Court of the Territory
OL PCa ioc ee 647
Order allowiie ayiige in eee ee 8
Petition for appeal, dated February 20, 1940,
and filed February 21, 1940000. 6
Statement of points ON APPCAL a ececccecccecesccsereeceeceerie 643
Destimoniy -......... See ee 39
Instructions! tothe. iy. 989
Motion of defendant for directed verdict... 544
Order denying eee eee 546
Motion of defendant to strike testimony of
Low - Rodteree e_ 2a 158, 542
Order denying 2.3 as 161, 542
Motion of defendant to strike testimony of
John Jichini eee ee 194, 543
Order denyinogee een 202, 543
Motion of defendant to strike testimony of
Billie Florence Penland.........000........... 300, O43
Order denyiiic. ee 306, 544
Motion of defendant to strike testimony of
Kdward J, Burs O41
Order denying, 542
Opening statement of plaintiff... 46
Transcript of proceedings at imposition of
sentence 00. 638
Verdict a ncicenanen 637

The Territory of Hawauw ill

Index Page
Witnesses for Defendant:
Dwight, Charles B. i!
TOT eee 552
os (C1RC 38 6 Go 506
O’Connor, Edward A.
Se OCIA ie gc 083
Paulos, Jacinto
(PSC) 4 ee 574.
==(0)0088 lascanecwcas ee OD

Warren, [lene

SOLO) ai. 302
Wilder, Harry A.

REC, | a er ong
Young, Kenneth

CPG Soo 569

Witnesses for plaintiff:

Apoliona, Francis

BUT ilicsssssc.sesicsscexanvccccccssseccscssacacssestovasconvvesonens 445

COGS cee 448
Bell, Wilham Ernest

Br AMI iecoc ss. csccsncczss icc 2oseczclssds lessccconssteennsciasatebecosoeeene Sy

OTROS Gn en 54

Bunnell, James 8.

(CT GO coc ee _ 5s
Be ooo else orks i ec cascnccscccossesacesesnnseecaveeone a2)
SMITE igo ekesceeccnscnscceecsassscccccnecceconccssee 526

1V Ilene Warren vs.

Index

Witnesses for Plaintiff (Cont.):

Burns, Edward J.

(heel eee eer
—recalled, CITOCE nee escccsceee
SC LOSS aqsneinnacmmanentent cre ises ae
SUE CUR, we nee tannee amen:
SEV OSS aera eS” ae
== OC ie a ee
SCC, ae ee ee
STAC Gest eaeoc ce oes oe
—TVeCA]LCd, CROSS o--ceececceeeeseeeeeseeeen
— Hemme Cie acer eee:
—=EECEOSS) 2 eee ee

Caminos, Clarence

ee ih Ae(C hae hee
SS OC ee eee ee

COS ae ee eee

-Geme < 6 ee
—Feredihecimee a ae

Erpelding, Charles W.

(iret. 4.8

Faus, Robert B.

—(irect eee

Fraga, Albert

—( direct oe re

Page

The Territory of Hawa v

Index Page

Witnesses for Plaintiff (Cont.) :
Kalauli, Levi
LUG LeGil Caine 508

Keliikipi, Herman

rah Le ee 387
Kiehm, John

(Pec ai ree 162

—_ 08S ee 189

ECG UEC, | 192

= FASTA eee 192

Lee, Young Choon

- hOG) tae 939
Liu, David
erect ee cc. ADD
— {ORORS | ae ie ee 900
—a@liRkG) See ee 507
McGuire, Lucy
— (eG) Ae ee 206
__- POSS a 219
Aitken 224
[PCS 220
== SaeCLIC Ge 230
TPE ROSS, renee ere 230
__J0SEC LIC: | Vel
recalled Cross eens .. 248
=e Eee a 249
jie ae 249

— atyg ioc 951

Ilene Warren vs.
Index Page

Witnesses for Plaintiff (Cont.):
Michels, James P.

we UMET 6 cant ose ce Dee

—CT OSS a ee re 236

TOC CCE oe eeececcsensessssscssecesseveeeecenrtneesceenensnnsenee 238
Odle, William L.

—ditett 242 ee 380

= CS es ae eee e 386
Parker, Perry W.

UO Os sca eee 56
Penland, Billie Florence

LTTE CP onc. Sse ea Ah ce ne 311

CEOS Seca. ce cre Jen

—TedPeCt lisence 348

—TCCROSS) 2s 222 eee ane OOo

——LPOTOCITV CCE eeeeceessccecessesececcsssssssssnnssesesseusesses 354
Rodgers, Lou

—iCCt. ch ad 2 ee 76

—CYOSS) 225.2 ee ee 114

VOMUV CCE ae cececccsseccessessesneseecesessecesestnee ee 151

—Tecross” 2 ae ee eee 157

Scott, Marjorie

—direct eee Sao
—CYOSS: 02 367
——POCUVCCE ereercscsssssssssescsssssssecsssssseessececceseseeesesseesee 369

Taylor, James 8.
—direct

The Territory of Hawai Vil
Index Page

Witnesses for Plaintiff (Cont.) :
Yuen Kam

ie, Gall 450
= CUS et dee 456
— iin: ee 459
Rj 8S ae 460
5 i cl) Age 487
OSS 488

Verdict, dated and filed February 18, te 5

CHARLES E. CASSIDY, Public Prosecutor of the
City and County of Honolulu, and
KENNETH E. YOUNG, Deputy Public Prosecu-
tor, Honolulu Hale, Honolulu, T. H.,
Attorneys for Plaintiff-Appellee.

CHARLES B. DWIGHT, Esq,,
328 Damon Building, Honolulu, T. H.
Attorney for Defendant-Appellant,

————

Cr. No. ee... |e

In the Circuit Court of the First Judicial Circuit
Territory of Hawaii

January Term 1937
TERRITORY OF HAWALTI,

VS.

ILENE WARREN alias ‘‘SPEED’’ WARREN,
Defendant.

INDICTMENT FOR MURDER IN THE
SECOND DEGREE [1*]
First Count:

The Grand Jury of the First Judicial Circuit of
the Territory of Hawaii do present that Ilene War-
ren alias ‘‘Speed’’ Warren, at the City and County
of Honolulu, Territory of Hawaii, and within the
jurisdiction of this Honorable Court, on the 3rd

“Page numbering appearing at foot of page of original certified
Transcript of Record.

2 Ilene Warren vs.

day of August, 1937, with force and arms, unlaw-
fully, feloniously, wilfully and of her malice afore-
thought, and without authority and without justifi-
eation and without extenuation by law, did kill and
murder one Wah Choon Lee, a human being then
and there being, and did then and there and thereby
commit the crime of murder in the second degree,
contrary to the form of the statute in such case
made and provided.

Second Count:

And the Grand Jury of the First Judicial Circuit
of the Territory of Hawaii, in order to charge the
said Ilene Warren alias ‘‘Speed’’ Warren with the
crime of murder in the second degree, arising from
the same criminal acts and transactions [2] as here-
inabove set forth in the first count hereof, in differ-
ent form and count, do further say and present that
Ilene Warren alias ‘‘Speed’’ Warren, at the City
and County of Honolulu, Territory of Hawaii, and
within the jurisdiction of this Honorable Court, on
the 3rd day of August, 1937, with force and arms,
unlawfully, feloniously, wilfully and of her malice
aforethought and without authority and without
justification and without extenuation by law did
then and there, and while the hands and body of
one Wah Choon Lee were in contact with a certain
metal plate then and there being, cause the said
metal plate to be charged with a deadly charge of
electric current, and the said [lene Warren alias
‘‘Speed’’ Warren did then and there and thereby

The Territory of Hawai 3

electrocute and give to him, the said Wah Choon
Lee, certain mortal injuries, from which said elec-
trocution and mortal injuries the said Wah Choon
Lee did thereafter and on, to-wit, the said 3rd day
of August, 1937, die; and that so in manner and
form aforesaid, and at the time and place aforesaid,
the said Ilene Warren alias ‘“‘Speed’’ Warren un-
lawfully, feloneously, wilfully and of her malice
aforethought, and without authority and without
justification and without extenuation by law, did
kill and murder the said Wah Choon Lee, and did
then and there and thereby commit the crime of
murder in the second degree, contrary to the form
of the statute in such case made and provided.

Third Count:

And in order to set forth the unlawful and
felonious acts of the said Ilene Warren alias
‘Speed’? Warren, mentioned in the first and second
counts hereof, in different form and [3] count, to
meet the proof, the Grand Jury aforesaid do fur-
ther say and present that Tlene Warren alias
‘Speed’? Warren, at the City and County of Hono-
lulu, Territory of Hawai, and within the jurisdic-
tion of this Honorable Court, on the 3rd day of
August, 1937, with force and arms, unlawfully,
feloniously, wilfully and of her malice aforethought
and without authority and without justification and
without extenuation by law did cause a certain
metal plate to be charged with a deadly charge of
electric current, she, the said Ilene Warren alias

4 Tlene Warren vs.

‘Speed’? Warren well knowing at the time when
she so caused the said metal plate to be charged
with electricity as aforesaid that the said Wah
Choon Lee was about to bring and would bring
the hands and body of him, the said Wah Choon
Lee, into contact with the said metal plate; and
that thereafter, and wihle the said metal plate was
charged with electricity as aforesaid, the said Wah
Choon Lee did bring his body and hands into con-
tact with the said metal plate and by reason thereof
the said Wah Choon Lee was electrocuted and did
receive certain mortal injuries, from which electro-
cution and mortal injuries the said Wah Choon Lee
did thereafter and on, to-wit, the said 3rd day of
August, 1937, die; and that so in manner and form
aforesaid, and at the time and place aforesaid, the
said Ilene Warren alias ‘‘Speed’’ Warren unlaw-
fully, feloniously, wilfully and of her malice afore-
thought, and without authority and without justifi-
cation and without extenuation by law, did kill and
murder the said Wah Choon Lee, and did then and
there and thereby commit the crime of murder in
the second degree, [4] contrary to the form of the
statute in such case made and provided.

A true bill found this 5th day of August, 1937.
(s) HANS H. HARDERS
Foreman of the Grand Jury
Assistant
(s) CHAS. E. CASSIDY
Public Prosecutor of the City
and County of Honolulu

[5]

The Territory of Hawai D

Indictment presented and filed at 5 o’clock P. M.
Aug. 5, 1937.
(s) CLAUS ROBERTS
Clerk

Copy of the within Indictment before arraign-
ment furnished.

—

Tn the Circuit Court of the First Circuit
Territory of Hawaii

January Term A. D., 1938
Criminal No. 14332
Honorable Louis Le Baron, First Judge Presiding

THE TERRITORY OF HAWAII,
VS.

TLENE WARREN alias “SPEED” WARREN,
Defendant.

VERDICT
We the jury, in the above entitled cause, find the
defendant guilty of manslaughter, leniency recom-
mended.
(s) PATRICK J OHN O’SULLIVAN
Foreman
February 18, 1938.

[Endorsed]: Filed February 18, 1838. O. Sezen-
evsky, Clerk. [6]

6 Ilene Warren vs.

In the Supreme Court of the Territory of Hawaii
No. 2376

Error Criminal No. 14332 from Circuit Court, First
Judicial Circuit, Honorable Louis Le Baron,
Presiding.

THE TERRITORY OF HAWAII,
Plaintiff and Defendant-in-Ervror,

VS.

ILENE WARREN alias “SPEED” WARREN,
Defendant and Plaintiff-in-Error.

PETITION FOR APPEAL

‘To the Honorable, the Chief Justice and Associate
Justices of the Supreme Court of the Territory
of Hawaii:

Ilene Warren alias ‘‘Speed’’ Warren, Defendant
herein, deems herself aggrieved by the J udgment
of the Supreme Court of the Territory of Hawaii
made and entered on October 20th, 1939, pursuant
to the Opinion and Decision of said Court made
and entered on the 20th day of October 1939, and
the Decision on Petition for Re-hearing of said
Court rendered and filed on November 25th, 1939,
and hereby appeals to the Cireuit Court of Appeals
for the Ninth Circuit from said J udgment for the
reasons specified in the Assignment of Errors hereto
attached, and she prays that this appeal may be

The Territory of Hawaiw i

allowed and that a transcript of the record and
proceedings upon which said Judgment and Decree
were made, duly authenticated, may be sent to the
United States Circuit Court of Appeals for the
Ninth Cireuit and that said Judgment and Decree
may be reversed. [70]

Dated at Honolulu, Hawaii, this 20 day of Feb-
ruary, A. D. 1940.
ILENE WARREN alias
“SPEED’’ WARREN,
Defendant-Appellant,
By CHARLES B. DWIGHT,
Her Attorney. [71]

Receipt of a copy of the within acknowledged this
20 day of February, 1940.
KENNETH E. YOUNG,
Attorney for Territory of Hawaii.

[Endorsed]: Filed Feb. 21, 1940. Gus K. Sproat,
Deputy Clerk, Supreme Court. [69]

[Title of Supreme Court and Cause. ]
NOTICE OF APPEAL

Now comes Ilene Warren, alias ‘‘Speed’’ Warren,
Defendant Appellant above named, and gives Notice
of Appeal from the Judgment of the Supreme Court
of the Territory of Hawaii made and entered on
the 20th day of October, 1939, affirming the Judg-
ment and Sentence of the Circuit Court of the First

8 Ilene Warren vs.

Judicial Circuit, Territory of Hawaii, to the Ninth
Circuit Court of Appeals.

Dated at Honolulu, Hawaii, February 20, 1940.
ILENE WARREN alias
“SPEED”? WARREN,
Defendant-Appellant,
By CHARLES B. DWIGHT,
Her Attorney. [73]

ORDER ALLOWING APPEAL

Upon filmg by the Defendant-Appellant, Ilene
Warren, alias ‘‘Speed’’ Warren, of a bond in the
sum of $250 with good and sufficient sureties, the
appeal in the above entitled cause is hereby allowed.

JAMES L. COKE,
Chief Justice. [74]

Receipt of a copy of the within acknowledged
this 20th day of Feb., 1940.

KENNETH E. YOUNG,
Attorney for Territory of Hawaii.

[Endorsed]: Filed Feb. 21, 1940. Gus K. Sproat,

Deputy Clerk, Supreme Court. [72]

ae

[Title of Supreme Court and Cause. ]
ASSIGNMENT OF ERRORS
Now comes Ilene Warren, alias ‘*Speed’’ Warren,
Defendant above named, by Charles B. Dwight,
her attorney, and files the following Assignment of
Errors, upon which she will rely in the prosecution

The Territory of Hawai 9

of her appeal in the above entitled cause from the
Judgment entered herein on the 20th day of October,
1939, dismissing the Writ of Error of Defendant
from the Verdict, Judgment and Sentence of the
Circuit Court, First Judicial Circuit, of the Terri-
tory of Hawaii, and sustaining the Verdict, Judg-
ment and Sentence of said Circuit Court, and from
the Decision upon Petition for Rehearing, which
petition was duly filed within the term and within
the time required by the rule of the Court, which
Decision was entered herein on the 25th day of
November, 1939.
I.

That the Supreme Court of the Territory of
Hawaii [76] erred in dismissing the Writ of Error
of the Defendant from the Verdict, Judgment and
Sentence made and entered on the... day
Se ne Agta , 1938, of the Circuit Court
of the First Judicial Circuit, Territory of Hawai,
and in sustaining the Verdict, Judgment and Sen-
tence of the Circuit Court of the First Judicial
Cireuit, Territory of Hawaii, which Judgment of
the Supreme Court was made and entered on the
20th day of October, 1939, pursuant to a Decision
made and entered on the 20th day of October, 1939.

IT.

That the Supreme Court of the Territory of
Hawaii erred in dismissing the Defendant’s Pe-
tition for a Rehearing in the Supreme Court, which
Decision was rendered and filed on November 25th,
1939.

10 Ilene Warren vs.

Tae

That the Supreme Court of the Territory of
Hawaii erred in holding and finding that the evi-
dence of Edward J. Burns, a witness for the Ter-
ritory of Hawaii, concerning his observations in
the home of the Defendant on the night of August
0, 1937, was competent and admissible and in sus-
taining the ruling of the Cireuit Court overruling
the objection of the Defendant and in denying the
motion to strike, upon the ground that the entry
into the home of Defendant was illegal and viola-
tive of the Fourth and Fifth Amendments to the
Constitution and that the admission of said evi-
dence violated Defendant’s rights under the Fourth
and Fifth Amendments to the Constitution.

In the Circuit Court, the witness, Edward J.
Burns, upon being duly sworn, testified that he was
a police officer [77] having joined the Department
on November 16, 1936, and worked as a foot patrol-
man; that on August 3, 1937, he was assigned to
special duty with Captain Caminos; thereupon the
Defendant objected as follows:

‘“Mr. Dwight: May it please the Court, at
this time I want to object to the testimony of
this witness upon the ground that it is incom-
petent, irrelevant and immaterial; * * * upon
the further ground that any evidence of this
witness by observation in the house was il-
legal and in violation of the Fourth and Fifth
Amendments of the Constitution.

The Territory of Hawau 11

The Court: The Court will overrule the
objection.

Mr. Dwight: Save an exception.

The Court: The exception may be saved and
noted.”

(Tr. of Ev. p. 201.)

The witness then testified that he was assigned
by Captain Mookini to go with Captain Caminos
to raid the house of the Defendant; that he left
Honolulu at 5:30 P. M., arrived at Wahiawa and
left the Wahiawa Police Station at 8:45 P.M., in
eompany with Captain Kalauli, Captain Caminos
and four other officers. Thereupon the Defendant
again objected as follows:

“Myr, Dwight: May I have an additional
ground of objection, for the record, and that
is that any evidence of this witness was secured
without the consent of the defendant and in
violation of her rights under the Constitution.

The Court: Objection overruled.

Mr. Dwight: Exception.”’

Gig Gili. p. 202.)

The witness then testified that the group of seven
officers left the station; that he separated from the
eroup and [78] went to Defendant’s place; that he
wore a grey suit and black shoes and that all of
the other officers were also in civilian clothes; that
on reaching Defendant’s home he knocked on the
wall next to the door; no one answered so he re-

1 Llene Warren vs. -

turned to the street; that he walked back and again
knocked ; that he saw someone look out of a window
and heard footsteps; the door was opened by a
woman, Billie Penland; that he followed her into
the parlor and stopped by a wicker table and she
asked a question, then he followed her into a room,
where there was a bed, dresser and washstand, and
as she stood by, the witness took off his tie, started
to remove his coat and then had a conversation as
a result of which he gave the woman three dollars ;
that the woman took the three dollars and left the
room and took with her a basin of water, when she
returned he was undressing, she left and returned
again, when he had completed undressing, she went
to the bed and removed her robe and gat on the
bed; that he reached for his clothes, took out
a handkerchief, police badge and whistle, blew the
whistle three times, showed her the badge and told
her she was under arrest for investigation; that he
blew his whistle because that was a prearranged
signal between Captain Caminos and his men and
the witness that they were then to raid the house.

At the conclusion of the case in chief for the Ter-
ritory of Hawaii the Defendant moved to strike
the testimony as follows:

“Mr. Dwight: At this time I move to strike
the testimony of Officer Burns or so much
thereof as occurred subsequent to the time that
he testified the defendant asked what he meant
by breaking into this house, to-wit, everything

The Territory of Hawaii #33

that he testified to subsequent to that point
[79] when defendant entered the room down-
stairs upon the ground that the testimony is
incompetent, irrelevant and immaterial; upon
the ground that it was procured in violation of
the defendant’s rights under the Constitution,
the Fourth and Fifth Amendments, and upon
the further ground that at the time he was a
trespasser upon the premises of the defendant
in violation of the defendant’s rights under
the Constitution of the United States.

The Court: Motion denied.

Mr. Dwight: May I save an exception?

The Court: Exception noted.’’

(Tr. of Ev. pp. 501-502.)

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Ciremit Court’s
action in overruling the objections of the Defend-
ant and in denying Defendant’s motion to strike
for the following reasons:

(1) That the evidence was obtained as a result
of an illegal entry and search of Defendant’s home,
without Defendant’s consent, and in violation of
the Defendant’s rights under the Fourth and Fifth
Amendments to the Constitution of the United
States, and therefore, was incompetent and inad-
missible.

(2) That the evidence was highly prejudicial to
the Defendant and the overruling of Defendant’s
objections and denial of Defendant’s motion to
strike was prejudicial error.

14 Ilene Warren vs.

IV.

That the Supreme Court of the Territory of
Hawaii erred in holding and finding that the evi-
dence of Lou Rodgers, a witness for the Territory
concerning the electrical equipment in the home of
the Defendant, was competent, relevant, material
[80] and admissible; and in sustaining the denial
by the First Cireuit Court of Defendant’s motion
to strike upon the ground that the testimony was
obtained as a result of an illegal search and that
the admission thereof incriminated Defendant and
violated Defendant’s rights under the Constitution
and the Fourth and Fifth Amendments thereof.

At the trial in the Circuit Court, the witness
upon being duly sworn testified that the Defendant
procured the material and that John Kiehm in-
stalled the electrical apparatus in the home of the
Defendant; that the wires ran from the front and
back doors to the transformer; the witness also
located the switch and drew a picture of the trans-
former.

On cross-examination the witness further testi-
fied that she was questioned at the police station
by Captain Hays, who exhibited to her the electri-
cal equipment seized in Defendant’s home and that
every question he asked was based upon the elec-
trical equipment and that her entire statement to
the police was based upon the equipment that was in
her presence and in answer to questions regarding
it.

The Territory of Hawau 15

On redirect examination the witness testified that
when the police had her at the station shortly after
the death of Wah Choon Lee, they had some elec-
trical equipment there and that it was the same
equipment that was in the home of the Defendant
when she lived there; and stated that that was how
the police got the lead and that the police then
questioned her as to what she knew personally about
the equipment, how she knew it was in the house,
how it was put in and all such things; and that
all she told the police was based upon her memory
and her own observations and not what she saw
at the police station. (Tr. of Ev. p. 112). There-
upon the Defendant moved to strike [81] the tes-
timony.

The motion to strike, the ruling of the Court
thereon and the exception to the ruling are as
follows:

“Mr. Dwight: At this time I move to strike
the testimony of this witness upon the ground
that it now affirmatively appears that the evi-
dence the government is now offering by vir-
tue of placing this witness on the stand was
obtained as the result of an illegal search and
that this evidence tends to incriminate this
defendant and violates her rights under the
Fourth and Fifth Amendments to the Constt-
tomtom.’ Clr, ot Hey. p. 119) : |

“The Court: The Court is ready to rule.
This evidence which Mr. Dwight asked to be

16 Ilene Warren vs.

stricken and excluded upon the ground that
it is an invasion of the defendant’s Constitu-
tional rights under the Fourth and Fifth
Amendments, in that he argues is based upon
the evidence seized and the illegal search and
seizure, is denied * * *

Mr. Dwight: May I suggest an exception?

ie Court: Viowsinay.

Ciir, of Hive 1. 2a)

At the conclusion of the case in chief of the
Territory of Hawaii the Defendant again moved
to strike the testimony of this witness, as follows:

‘“Mr. Dwight: I move to strike the testi-
mony of Lou Rodgers * * * upon the ground
that any evidence that she may have given in
this particular case was based entirely upon
the electrical equipment * * * that was ordered
Suppressed by this Court and the further
ground that her entire testimony was adduced
at this trial from knowledge gained by the law
officers * * * when they made an illegal and
invalid search in contravention of [82] de-
fendant’s rights under the Constitution.

The Court: Motion denied.

Mr. Dwight: May I save an exception?

The Court: Exception noted.”’

(Tr. of Ev. pp. 502-503)

That the Supreme Court of the Territory of
Hawaii erred in sustaining the ruling of the Circuit
Court denying the Defendant’s motion to strike for
the following reasons:

The Territory of Hawai 7

(1) That the evidence was obtained from an
illegal source, to-wit, an illegal search and seizure,
and the admission thereof was in violation of the
Defendant’s rights under the Constitution and the
Fourth and Fifth Amendments thereof and there-
fore incompetent, irrelevant and immaterial.

(2) That the evidence was highly prejudicial
to the Defendant and the denial of Defendant’s mo-
tion to strike was prejudicial error.

Ve

That the Supreme Court of the Territory of
Hawaii erred in holding and finding that the evi-
dence of John Kiehm, a witness for the Territory
of Hawaii, concerning the electric equipment in the
home of the Defendant was competent, relevant,
material and admissible and in sustaining the Cir-
cuit Court’s rulings overruling the objection of
the Defendant and denying the Defendant’s motion
to strike the testimony, upon the ground that the
same was based upon information procured during
an invalid search and therefore tended to incrimi-
nate the Defendant under the Fifth Amendment
and which evidence was obtained in violation of
the Defendant’s rights under the Fourth and Fifth
Amendments to the Constitution of the United
States. [83]

At the trial in the Circuit Court the witness
upon being sworn testified that he was a resident
of Wahiawa and an automobile mechanic; that the
Defendant came to his garage and asked if he could

18 Ilene Warren vs.

install some device on the door so that when a per-
son opened it such person would receive an electric
shock; that he told her he could and later pur-
chased a transformer and installed it; that there
was one wire leading to the front door and one to
the back, the main wire led to a switch on the door
panel; that he did not reeall if he installed the
switch but did connect the wires thereto; that the
main wire was connected to the fuse plug and the
fuse plug was connected to the ordinary wire; that
the transformer was located above the living room
door, one wire running to the front door, one to the
back and one to the ground located outside the
house; that he had a conversation with the Defend-
ant after the apparatus was put in concerning the
wiring and how to operate it; that he was an auto
electrician and studied electricity.

‘he witness then proceeded to draw the floor
plan of the home of the Defendant locating thereon
the front door, the stairway, the electric switch,
the transformer, the fuse plug, the manner in which
the wires were connected to the front and back
doors, the wires to the ground and also drew a
large diagram showing the entire circuit marking
thereon the fuse plug, transformer, switch and con-
nections to the switch; and then described the switch
as a knife type switch, double throw, with two wires
leading to the transformer and then again drew a
diagram representing the approximate size of the
transformer, at which time the Defendant objected
as follows: [84]

The Territory of Hawau 19

Mr. Dwight: May it please the Court, may
I renew my objection? The further objection,
that this witness is to reproduce evidence by
an actual drawing of what this Court has
suppressed. I object as incompetent, irrele-
vant and immaterial.

The Court: The objection will be over-
ruled. There is no showing but what this was
entirely independent of any illegal search and
seizure.

Mr. Dwight: Exception.

The Court: Exception noted.”’

(Tr. of Ev. p. 146)

Thereupon the witness testified as to the dimen-
sions of the transformer; that it was about four and
one-half inches wide by six inches long and about
three inches thick; that the line running from the
transformer to the ground outside was marked on
the plan, which wire was connected to a pipe; that
the wire leading to the front door was soldered
onto the front screen and approached the screen
from the right upper corner inside the house about
an inch above the hinge.

On cross-examination the witness testified that
he made a statement to the police after the police
officer was killed and that he signed a statement
at the police station; that it was the first state-
ment that he made concerning the case; that at the
time the statement was made the police exhibited
to him certain electrical equipment which consisted

20 Ilene Warren vs.

of a transformer, some wires and a switch and that
they were the same articles that he put into the
house of the Defendant. (Tr. of Ev. p. 151)

The witness further testified that in 1936 the De-
fendant drove up to the shop and asked him if he
could install [85] some kind of a device on the front
door to keep away soldiers because they came at all
hours of the night and pounded on the door; that
he told the defendant he could and further told
the Defendant that a transformer would give a
shock; that the Defendant asked him if he would
guarantee that it would not kill and that he told
the Defendant that the shock was not strong enough
to harm a person and that the Defendant then asked
him to install the apparatus. (Tr. of Ev. p. 152).

On redirect examination, the witness testified that
all of his evidence theretofore given was from his
memory of what happened and what he had put in the
house and on recross examination he testified that
the police showed him the equipment and asked him
what he knew about that equipment and then the
witness began to tell his story. Whereupon the
Defendant moved to strike the testimony as follows:

‘“Mr. Dwight: At this time I move to strike
the testimony of this witness upon the ground
that it 1s incompetent, irrelevant and imma-
terial; that it is based upon information pro-
cured during an invalid search and that this
testimony tends to incriminate the defendant
under the Fifth Amendment and was obtained

The Territory of Hawai 21

in violation of the defendant’s rights under the
Fourth Amendment and also the further ground
that the testimony was procured in violation of
law.’

Ciotww. pe 155)

In a formal decision the Court denied the mo-
tion. (Tr. of Ev. pp. 163-166)

“Mr. Dwight: May I save an exception to
the Court’s rule?

The Court: Exception saved and noted. [86]

Mr. Dwight: On the grounds stated and I
renew my objections all the way through in-
cluding this witness your Honor on the same
geround.”’

(Tr. of Ev. p. 166)

That the Supreme Court of the Territory of
Hawaii erred in sustaining the rulings of the Cir-
cuit Court overruling the objection of the Defend-
ant and denying the defendant’s motion to strike
for the following reasons:

(1) That the evidence was obtained from an
illegal source, to-wit, an illegal search and seizure
and the admission thereof was in violation of the
Defendant’s rights under the Constitution and the
Fourth and Fifth Amendments thereof and there-
fore incompetent, irrelevant and immaterial.

(2) That the overruling of the objection of the
Defendant and denial of the Defendant’s motion to
strike was prejudicial error.

Ze Ilene Warren vs.

Va

That the Supreme Court of the Territory of
Hawaii erred in holding and finding that the evi-
dence of Bilhe Florence Penland, a witness for the
Territory of Hawaii, to the effect that the Defend-
ant told her that she pulled the switch, was compe-
tent and admissible and in sustaining the ruling of
the Circuit Court in denying Defendant’s motion to
strike the testimony of the witness, which motion
was based upon the ground that the evidence was
produced and obtained in violation of Defendant’s
rights under the Fourth and Fifth Amendments to
the Constitution.

In the Circuit Court the witness, Billie Florence
Penland, upon being duly sworn, testified that she
was ac- [87] quainted with the Defendant and lived
with her on August 3, 1937, on which day there was
a raid; that officer Burns was there; that they went
to the reception room; that the officer blew a whistle
and some one banged on the door; that the defend-
ant came to the door; that she saw the defendant
again on the front porch when there was a struggle
with the officer; that she ran upstairs and later saw
the defendant upstairs when the defendant told her
to go into the closet and stay there, and that the de-
fendant told her she turned the switch.

On cross-examination the witness testified that
while she was held at the police station, the police
showed her some wire, equipment, and a trans-
former and then they began to pump her, and that
she did not make any statement to the police until

The Territory of Hawai 23

the wires, transformer and door was shown to her
and then they compelled her to tell what she knew
about the door.

On redirect examination the witness stated that
all she testified to was based upon her memory of
what happened on the night of August Sram #931.

Upon completion of the testimony the Defendant
moved to strike as follows:

“Mr. Dwight: At this time I move to strike
the testimony of this witness upon the ground
that it is incompetent, irrelevant and imma-
terial. The evidence was produced and obtained
in violation of defendant’s rights under the
Fourth and Fifth Amendments of the Consti-
funien, * * *’’

(Tr. of Ev. p. 316)

The trial Court denied the motion and the excep-
tion was duly noted, as follows:
“The Court: The motion is denied.”’ [88]
(Tr. of Ev. p. 316)

“Mr, Dwight: Save an exception.
The Court: Exception granted.”’
(Tr. of Ev. p. 317)

That the Supreme Court of the Territory of
Hawaii erred in sustaining the ruling of the Cir-
cuit Court, denying the Defendant’s motion tostrike
for the following reasons:

(1) That the evidence was obtained and adduced
as a result of an illegal search and seizure, and

24 Llene Warren vs.

in violation of the Defendant’s rights under the
Constitution of the United States and the Fourth
and Fifth Amendments thereto, and was therefore
incompetent and inadmissible.

(2) That the evidence was highly prejudicial to
the Defendant and the denial of the Defendant’s
motion to strike was prejudicial error.

VII.

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s ac-
tion in instructing the jury over the objection and
exception of Defendant, as requested by the Terri-
tory of Hawaii, in Territory of Hawaii’s requested
instruction No. 12, as follows:

‘The Court: You are instructed that Sec-
tion 5404 of the Revised Laws of Hawaii 1935
provides as follows:

‘Policemen, or other officers of justice, in
any seaport or town, even in cases where it
is not certain that an offense has been com-
mitted, may, without warrant, arrest and de-
tain for examination such persons as may be
found under such circumstances as justify a
reasonable suspicion that they have com-
mitted or intend to commit an offense.’

You are hereby instructed that the term ‘rea-
sonable suspicion’ as used in said statute is
construed by the [89] Court to mean probable
cause.

The Territory of Hawa 20

You should consider this law together with
all the evidence in the case in determining
whether or not the deceased, Wah Choon Lee,
was lawfully upon the premises of the defend-
ant at the time in question.”’

To the giving of the instruction above set out,
the Defendant objected, and stated her reasons
therefor orally in the Judge’s Chambers Wa Wave
presence of the Assistant Publie Prosecutor, to-wit,
that Section 5404 of the Revised Laws of Hawaii
1935, incorporated in said instruction is unconsti-
tutional and void in that under said section and
instruction arrests without warrant may be made
in either felony or misdemeanor upon probable
cause irrespective of whether the erime was com-
mitted in the presence of the arresting officer or
not; that under said section an arrest without war-
rant for an offense not committed in the presence
of the arresting officer could be made in the case of
a misdemeanor; that if any erime had been com-
mitted at the time of the entry of the officers m
the home of Defendant it was a misdemeanor, and
that therefore the said instruction contravened the
Fourth Amendment to the Constitution of the
United States; that said instruction permitted the
jury to determine from all the evidence in the case,
instead of only such facts as were cognizable by the
officers at the time of entry, in determining whether
a crime had been committed 1 their presence, and
that the instruction was prejudicial to the rights of
the defendant. At the conclusion of the charge of

26 Ilene Warren vs.

the Circuit Court, in the presence of the jury, be-
fore the jury retired, the Defendant duly excepted.

That the Supreme Court of the Territory of
Hawaii [90] erred in sustaining the Circuit Court’s
action in giving to the jury the above instruction
over the objections of the Defendant for the follow-
ing reasons:

(1) That said instruction is not the law; that
Section 5404 of the Revised Laws of Hawaii 1935,
is null and void, in that it contravenes Article Four
of the Amendments to the Constitution of the
United States, in that under said section, arrests
without warrant in misdemeanors may be made
upon probable cause, whereas under the Constitu-
tion arrests may only be made in the case of mis-
demeanors where the offense is committed in the
presence of the arresting officer.

(2) That said instruction was highly prejudi-
cial to Defendant in that it permitted the jury to
determine the legality of the arrest from all of the
evidence and not from such facts as were cog-
nizable only by the arresting officer.

(3) That said instruction was erroneous and the
giving of which constituted reversible error.

VITI.

That the Supreme Court of the Territory of Ha-
wali erred in sustaining the Circuit Court’s action
in instructing the jury over the objection and ex-
ception of Defendant, as requested by the Territory

The Territory of Hawai 27

of Hawaii, in Territory of Hawaii’s requested in-
struction No. 12A, as follows:

“You are instructed that if you believe from
all the evidence and beyond a reasonable doubt
that the deceased was acting as a police officer
and that he went upon the premises of the de-
fendant for the purpose of assisting another
police officer, and that the deceased in so doing
acted under such circumstances as would jus-
tify a reasonable suspicion based upon probable
cause that some person or persons upon the
premises had committed or intended to commit
an offense against the laws of the Terri- [91]
tory of Hawaii, then you must find under such
circumstances that the deceased, Wah Choon
Lee, had a lawful right there and it was his
duty to enter upon the premises of the defend-
ant and you must not under such circumstances
consider the deceased as a trespasser.’

To the giving of the instruction above set out,
the Defendant objected, and stated her reasons there-
for orally in the Judge’s Chambers in the presence
of the Assistant Public Prosecutor, to-wit: That
said instruction was erroneous in law; that it con-
travened the Fourth Amendment to the Constitu-
tion of the United States in that under said instruc-
tion an arrest without warrant in the case of a mis-
demeanor could be made upon probable cause even
though the offense was not committed in the pres-
ence of the arresting officer and that said instruc-

98 Ilene Warren vs.

tion was prejudicial to the Defendant, and at the
conclusion of the charge of the Court, in the pres-
ence of the jury, before the jury retired, the De-
fendant duly excepted.

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s ac-
tion in giving to the jury the above instruction over
the objection of the Defendant, for the following
reasons:

(1) That said instruction is not the law, that
the instruction permits arrests to be made in mis-
demeanors, without warrant and without the pres-
ence of the arresting officer and therefore conflicts
with Article IV of the Amendments to the Consti-
tution of the United States.

(2) That said instruction was highly prejudicial
to defendant in that it permitted the jury to de-
termine the right to make an arrest upon all the
evidence in the case and not only upon such facts
as may have been known to the arresting officer.

[92]

IX

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s
action in instructing the jury over the objection
and exception of Defendant, as requested by the
Territory of Hawaii, in Territory of Hawaii’s re-

quested instruction No. 14, as follows:
‘Vou are instructed that if you believe from
all the evidence and beyond a reasonable doubt

The Territory of Hawai 29

that the deceased was acting as a police officer
and that he went upon the premises of the de-
fendant for the purpose of arresting and detain-
ing for examination such persons as he might
have found thereon, and that the deceased m
so doing acted under such circumstances as
would justify a reasonable suspicion based
upon probable cause that some person or per-
sons upon the premises had committed or in-
tended to commit an offense against the laws
of the Territory of Hawaii, then you must find
under such circumstances that the deceased,
Wah Coon Lee, had a lawful right there and
it was his duty to enter upon the premises of
the defendant and you must not under such
circumstances consider the deceased as a tres-
passer.

And in this connection you are further 1n-
structed that the fact as to whether or not there
was a ‘no trespassing’ sign upon the premises
at the time, would not alter the right of the
deceased, Wah Choon Lee, or the other police
officers with him, to be upon the premises in
question. ”’

To the giving of the instruction above set out,
the defendant objected, and stated her reasons
therefor orally in the Judge’s Chambers, in the
presence of the Assistant Public Prosecutor, to-wit:
that said instruction was erroneous in law; that it
contravened the Fourth Amendment to the Consti-

30 Ilene Warren vs.

tution of the United States, in that under said
Instruction an arrest without warrant in the case
of a misdemeanor could be made upon probable
cause, even though the offense was not [93] com-
mitted in the presence of the arresting officer and
that said instruction was prejudicial to the Defend-
ant; and at the conclusion of the charge of the
Court, in the presence of the jury, before the jury
retired, the Defendant duly excepted.

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Cireuit Court’s
action in giving to the jury the above instruction,
for the following reasons:

(1) That said instruction is not the law, that
the instruction permits arrests to be made in mis-
demeanors without warrant and without the pres-
ence of the arresting officer and therefore conflicts
with the Fourth Amendment to the Constitution of
the United States.

(2) That said instruction was highly prejudicial
to Defendant in that it permitted the jury to de-
termine the right to make an arrest upon all the
evidence in the case and not upon such facts as may
have been known to the arresting officer.

a
That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s re-
fusal to give to the jury defendant’s requested in-
struction No. 16, upon the subject of arrests, as
follows:

The Territory of Hawai 31

‘You are instructed that a police officer may
arrest without a warrant one guilty of a mis-
demeanor only if the misdemeanor is committed
in the officer’s presence.”’

The Territory of Hawaii objected to the giving
of said instruction upon the ground that it con-
flicted with Section 5404 of the Revised Laws of
Hawaii 1935, set forth in [94] Territory’s requested
instruction No. 12.

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s re-
fusal to give said instruction for the following
reasons:

(1) That said instruction properly states the
law of arrests and is consistent with the Constitu-
tion of the United States, and that Section 5404 of
the Revised Laws of Hawaii 1s unconstitutional and
void.

(2) That the refusal to give said instruction was
highly prejudicial to Defendant in that the jury was
not properly instructed upon the vital subject of
arrests.

x.

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s re-
fusal to give to the jury Defendant’s requested in-
struction No. 18, upon the subject of arrests, as
follows: |

‘You are instructed that to justify an arrest
for a misdemeanor without warrant it must
have been committed in the officer’s presence,
and it is so committed, where he can by the

32 Ilene Warren vs.

exercise of his own senses detect it; but mere
suspicion is not enough.”’

The Territory of Hawaii objected to the giving
of said instruction upon the ground that it con-
flicted with Section 5404 of the Revised Laws of
Hawailii 1935, set forth in Territory’s requested in-
struction No. 12.

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s re-
fusal to give said instruction for the following
reasons:

(1) That said instruction properly states the
law of arrests and is consistent with the Constitu-
tion of the [95] United States and that Section
0404 of the Revised Laws of Hawaii, 1935, 1s un-
constitutional and void.

(2) That the refusal to give said instruction was
highly prejudicial to Defendant in that the jury was
not properly instructed upon the vital subject of
arrests.

That as to Assignment of Errors Nos. VIT to XT
inclusive, the Defendant at the conclusion of the
charge of the Court, in the presence of the jury,
before the jury retired, excepted to the Circuit
Court’s ruling as follows:

“Mr. Dwight: May it please the Court at
this time may I except to the granting by the
Court of all of the prosecutions requested in-
structions upon my general objection?

The Court: You may.

The Territory of Hawaun 33

Mr. Dwight: To the granting of Prosecu-
tion’s Requested Instructions Nos. 3, 4, 9, he,
12A, 13, 14 and 17 over objection, and the re-
fusal of the Court to give Defendant’s Re-
quested Instructions numbered 1, 2, on, o, 10,
13, 16, 18, 28, 30, 31, 32 and 37.

The Court: Exception will be noted. ‘The
objections are already in the record.”

(Tr. of Ev. pp. 564-565.)

Paved il:

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Circuit Court’s
action in accepting the verdict of guilty of man-
slaughter, leniency recommended, for the reason
that the said verdict is contrary to the law, evidence
and weight of the evidence, to which ruling the
Defendant duly excepted, in the presence of the
jury and before [96] it was dismissed as follows:

“Mp, Dwight: At this time, may it please
the Court, may I except upon the ground it is
contrary to law, the evidence, the weight of
the evidence, and hereby give notice of a motion
for a new trial.”’

(Tr. of Ev. p. 593.)

XIII.

That the Supreme Court of the Territory of
Hawaii erred in sustaining the Judgment and Sen-
tence of the Circuit Court upon the verdict for the
reason that the same is contrary to law, upon the

34. Ilene Warren vs.

imposition of which sentence the Defendant ex-
cepted as follows:

‘“Mr. Dwight: May the defendant save an
exception to the sentence upon the ground it
is contraty tonawe

(Tr. of Ev. p. 597.)

The aforesaid Assignments of Error Nos. I to
XIII inclusive above set forth are filed and based
upon all the pleadings and exhibits in the above en-
titled cause, upon all the clerk’s minutes, the ver-
dict, judgment, sentence, upon the official re-
porter’s transcript of the testimony, upon all of
the proceedings, records and files, which are hereby
all referred to and incorporated herein, and made
a part of these Assignments of Errors, as if fully
set out herein, for the purpose of this appeal.

Wherefore, the Defendant, Appellant herein,
Ilene Warren, alias ‘‘Speed’’ Warren, prays that
Judgment in said cause be reversed and the cause
remanded, with instructions to the trial Court to
discharge the Defendant and/or with [97] instruc-
tions concerning further proceedings therein, and
for such other and further relief as may be just in
the premises.

Dated at Honolulu, Hawaii, this 20 day of Feb-
ruary, A. D 1940.
ILENE WARREN alias
“SPEED” WARREN,
Defendant-Appellant,
By CHARLES B. DWIGHT,
Her Attorney. [98]

The Territory of Hawan 35

Receipt of a copy of the within acknowledged this
20th day of February, 1940.
KENNETH E. YOUNG,
Attorney for Territory of Hawai.

[Endorsed]: Filed Feb. 21, 1940. Gus K. Sproat,
Deputy Clerk, Supreme Court. [75]

Sane

[Title of Supreme Court and Cause. |
CITATION ON APPEAL
The United States of America—ss.

The President of the United States of America
to:

The Territory of Hawaii and to Charles E. Cas-
sidy, Public Prosecutor of the City and County of
Honolulu, its Attorney:

You are hereby cited and admonished to be and
appear at the Ninth Circuit, to be held at the City
and County of San Francisco, State of California,
within thirty (30) days from the date of this writ,
pursuant to an order allowing appeal, filed in the
office of the Clerk of the Supreme Court of the
Territory of Hawaii, wherein Lene Warren alias
‘““Spyeed’’ Warren, is the Defendant and you are
the Plaintiff, to show cause, if any there be, why
the judgment in such appeal mentioned, should not
be corrected, and speedy justice should not be done
to the parties in that behalf. [100]

Witness, the Honorable Charles E. Hughes, Chief
Justice of the Supreme Court of the United States

36 Ilene Warren vs.

of America, this 21st day of February, A. D. 1940,
and of the Independence of the United States 164th.
[Seal] JAMES L. COKE,

Chief Justice.
Attest:
GUS K. SPROAT,
Deputy Clerk of the Supreme
Court of the Territory of
Hawaii.
Received a copy of the within citation February
21, 1940.
TERRITORY OF HAWATI,
By KENNETH E. YOUNG.

Let the within Citation issue.
JAMES L. COKE,
Chief Justice. [101]
Receipt of a copy of the within acknowledged this
21 day of Feb., 1940.
KENNETH E. YOUNG,
Attorney for Territory of Hawaii.
[Endorsed]: Filed Feb. 21, 1940. Gus K. Sproat,
Deputy Clerk, Supreme Court. [99]

en

[Title of Supreme Court and Cause.]
CLERK’S CERTIFICATE

I, Gus K. Sproat, Deputy Clerk of the Supreme
Court of the Territory of Hawaii, by virtue of the
petition for appeal filed in the above entitled cause,
being pages 69 to 71, both inclusive, and in pursu-

on

The Territory of Hawair a7

ance of the praecipe for transcript of record, being
pages 107 to 109, both inclusive, do hereby transmit
to the United States Cireuit Court of Appeals for
the Ninth Circuit the foregoing transcript of record
on appeal composed of pages 1 to 113, both inelu-
sive, and the transcript of proceedings had and tes-
timony given, Volume 1, Parts 1 and 11, Numbered.
868, and filed January 14, 1938.

I do hereby certify that pages 1 to 68, both inelu-
sive, and pages 102 to 106, being indictment for
murder in the second degree, ver dict, clerk’s minutes
of the Cireuit Court, First Judicial Circuit, opinion
of the Supreme Court, judgment of the Supreme
Court, petition for rehearing, decision on petition
for rehearing, application for recall of mandate,
order of the Supreme Court, recalling mandate,
cost bond, and the transcript of proceedings had
and testimony given Volume 1, Parts lL and 11, No
868, filed January 14, 1938, are full, true and cor-
rect copies of the originals on file in the office of
the Clerk of the Supreme Court of the Territory of
Hawaii. [114]

I do certify further that pages 69 to 101, beth in-
clusive, and pages 107 to 113, both inclusive, being
petition for appeal, notice of appeal, and order
allowing appeal, assignment of errors, citation on
appeal, praecipe for transcript of record, and orders
enlarging time to file record on appeal, are the
originals filed in the Supreme Court of the Terri-
tory of Hawaii.

38 Ilene Warren vs.

I do certify also that the cost of the foregoing
transcript of record on appeal is $25.00, and the
said amount has been paid by Charles B. Dwight,
Esq., attorney for the appellant.

In witness whereof, I have hereunto set my hand
and affixed the Seal of the Supreme Court of the
Territory of Hawaii, at Honolulu, City and County
of Honolulu, Territory of Hawaii, this 18th day of
April, A. D. 1940.

[Seal] GUS K. SPROAT,

Deputy Clerk of the Supreme
Court of the Territory of
Hawaii. [115]

The Territory of Hawai 39

Circuit Court, First Judicial Cireuit
First Division
Territory of Hawai
January Term, A. D. 1938

Indictment
C4332

Murder, Second Degree

THE TERRITORY OF HAWAII,
Plaintiff,
VS.

TLENE WARREN alias ‘‘SPEED” WARREN,
Defendant.

Honolulu, T. H., Wednesday, Feb. 2, 1938.
Before Hon. Louis Le Baron, First Judge, and a

jury.
Mr. H. A. Wilder, Clerk
Mrs. Olga Sezenevsky, Clerk

Mr. George R. Clark, Reporter

Appearances:
Hon. Charles E. Cassidy, Public Prosecutor, by
Kenneth E. Young, Esq., Assistant Public
Prosecutor, for the Territory.
Mr. Charles B. Dwight, for the defendant.

(TESTIMONY)
TRIAL BY JURY

(At the hour of nine o’clock a.m., all parties to
this cause being present, the defendant being pres-

40 Ilene Warren vs.

ent and represented by counsel, and all the jurors
on the panel upon roll call by the clerk being pres-
ent, the impanelling of a jury was commenced, pro-
ceeded with and at the hour of 11:15 o’clock a.m.
the present panel was exhausted [1*] upon the Ter-
ritory exercising its seventh peremptory challenge.
Thereupon the Court excused the remaining jurors
in the jury-box until nine o’elock a. m., February 3,
1938. )

Mr. Young: If your Honor please, before this
panel is drawn, the Territory asks the Court to
order certain witnesses to be back tomorrow morn-
ing without further subpoena.

Mr. Dwight: Call the witnesses inside.

Mr. Young: (Upon two women and one man
entering the court-room door) Lou Rodgers, John
Kiehm and Lucy McGuire.

The Court: (To aforesaid persons) You three
witnesses, who have been subpoenaed in this case,
Territory vs. lene Warren, are notified the case is
continued until tomorrow morning at nine o’clock.
Be back here without fail. (To the Clerk) Proceed
to draw a special panel of twenty-six names.

(Thereupon the clerk drew twenty-six names, as
ordered). Those names will be placed upon a special
venire returnable tomorrow morning at 8:45 a. m.

(At 11:30 o’clock a.m. a recess was taken until
Thursday, February 3, 1938, at nine o’clock a.m.)

[2]

“Page numbering appearing at foot of page of original certified
Transcript of Record.

The Territory of Hawai 4]

Honolulu, T. H., Thursday,
February 3, 1938.

FURTHER TRIAL BY JURY

(At the hour of nine o’clock a.m. the trial by
jury was resumed.)

The Clerk (Mr. Wilder). Criminal 14332 Terri-
tory of Hawaii vs. lene Warren alias ‘“Speed’’
Warren, for further trial.

Mr. Dwight: At this time may I be permitted to
make a motion in chambers instead of asking to
have the jury excused ?

The Court: All right, Court will take a short
recess to hear the motion in chambers.

(A brief recess was taken. )

In Chambers.

Mr. Dwight: At this time, in view of the recent
developments, I move that the Court order the im-
mediate return of all property ordered suppressed.
The police have been using that equipment, taking
the transformer to several radio stations to locate
one of a similar nature. The attempt by the gov-
ernment to use evidence that had been suppressed
for the purpose of gathering other evidence and
proving indirectly what they cannot prove directly
would compel the defendant to be a witness against
herself. I would like the Court to make an order
for the immediate return to the defendant of all the
property ordered suppressed.

The Court: Isn’t that motion superfluous ?

Mr. Dwight: You have made an order. [3]

49 Ilene Warren vs.

Mr. Young: I don’t know anything about that.
The order is in effect. I haven’t used it myself
since the order.

Mr. Dwight: I have been reliably informed by
the operator of a radio station that this happened.

Mr. Young: I don’t know anything about that.
All I know is that the evidence is in the Police
Department. I don’t care what they do with it. It
is none of my concern.

Mr. Dwight: I think an order for the immediate
return is in order.

The Court: My impression is the order calls for
the immediate return.

Mr. Young: I know it is not coming from the
Prosecutor’s Office but it is coming from the Police
Department. I can assure you that nothing con-
nected with that house is being used. As an officer
of this Court I feel it my duty to keep as much out
as the order calls for.

The Court: The Court will make an additional
order granting that motion to clarify the order
already entered to suppress, that the evidence seized
by this illegal search be returned forthwith to the
defendant.

Mr. Dwight: May I suggest by stipulation, ‘“‘Or
such person as the defendant may designate in
writing’, so that we may have someone go and
get it?

The Court: To the defendant or such person as
the defendant may designate in writing and to re-

The Territory of Hawai 43

turn [4] it forthwith immediately. Do you wish to
have a little time to have that delivered?

Mr. Dwight: I think I can write the letter and
have her sign it. (Thereupon Mr. Dwight types the
letter and has the defendant sign the same)

(At 9:15 o’clock a.m. the Court reconvened
and the Clerk (Mr. Wilder) called the roll of
jurors in the jury-box and found eleven pres-
ent. He also read the return of the deputy
sheriff to the special venire issued out of this
court on February 2nd and called the roll of
those served, who were found to be all present
with the exception of three excused and those
unserved. Thereupon these jurors were duly
sworn by the clerk and examined by the Court
as to their qualifications and disqualifications
to sit as trial jurors for the January 1938 term
of Court and found to be qualified. The remain-
ing trial jurors on the new panel were sworn
as to their qualifications to sit in the instant
case and the impanelling of a jury to try the
case was resumed, proceeded with and com-
pleted.)

Mr. Dwight: The jury is satisfactory.
Mr. Young: The jury is satisfactory to the Ter-
ritory.
The Court: Let the record so show. Swear the
jury. |
(At 10:05 o’clock a. m. the jury was duly im-
panelled, accepted and SWOIN. )

44 Ilene Warren vs.

Mr. Young: May we have a short recess at this
time, your Honor? [5]

The Court: The rest of the jury panel will be
excused for this case. Until further order of the
Court, you are excused. The Court stands in recess.

(At 10:05 o’clock a.m. a brief recess was
taken and at 10:20 o’clock a.m. the Court re-
convened. )

Mr. Dwight: May it please the Court, at this
time may I ask the prosecution to elect upon what
count of the indictment they intend to proceed ?

Mr. Young: Our Supreme Court has held, your
Honor, in a ease like this it is not necessary.

Mr. Dwight: Our Supreme Court does not so
state. The statute says:

(Reading Sec. 5502, RLH 1935) “In an in-
dictment for an offense which is constituted of
one or more of several acts or which may be
committed by one or more of several means or
with one or more of several intents or which
may produce one or more of several results, two
or more of those acts, means, intents or results
may be charged in the alternative. ”’

The Court: What section is that?

Mr. Dwight: That is all that our statute Says.
This indictment sets forth murder in the second de-
gree and various and divers means. Both of the
grounds conflict and the defenses conflict.

Mr. Young: I think the case in 11 Hawaii 341
will settle that.

The Territory of Hawai 45

Mr. Dwight: The statute was only passed last
year for that very purpose.

The Court: What is here in See. 5502?

Mr. Dwight: Section 5502 deals solely with the
indictment. Prior to that time you could demur
to [6] the indictment because it is duplicitous. This
section simply allows and the defense is entitled
to know upon which count they intend to proceed.
If the Court will examine the counts, the Court will
gee a difference between the three counts, where the
defenses will be entirely different.

The Court: I see. You resist this motion?

Mr. Young: That case in Il Hawaii covers it.
The case in 11 Hawaii is squarely in point.

The Court: Are you familiar with 11 Hawaii?

Mr. Dwight: In 1915 the statute was passed to
cover that defect in an indictment. There is no
question we are entitled to an election. We must,
before we put on our defense, compel the prosecu-
tion to elect. I am asking them to elect now.

Mr. Young: I submit it to the Court.

The Court: The Court will reserve its decision
on that.

Mr. Dwight: Very well.

Mr. Young: Any further motions ?

Mr. Dwight: If your Honor please, I move that
all witnesses in this case be excluded from the hear-
ing of this court-room. |

The Court: No objection to that motion, the
motion will be granted. All witnesses and prospec-
tive witnesses will be excluded from this court-room

46 Ilene Warren vs.

and from the hearing of this court-room until fur-
ther order of the Court. Until further order of
the Court all witnesses will remain outside the
court-room and that rule will be observed through-
out [7] the trial of this case. You may proceed,
Mae, Y oune:,

PLAINTIFF’S OPENING STATEMENT
TO THE JURY

Mr. Young: If the Court please, and gentlemen
of the Jury, I know it is the first experience of
some of you on a criminal trial jury. I believe
before a juror can perform his duty he should know
something about the procedure. This is what is
called an opening statement by the prosecution and
in it we give you a statement of what we expect
to prove in the case. Anything we may say is not
to be used as evidence against this defendant or for
the Territory. It is merely a bird’s-eye view of
how the prosecution sees this case so that you may
follow the evidence as it comes in step by step. Of
course, we cannot put on all the evidence at the
same time. It is for that reason, so that you may
know about what to expect in the line of testimony.
After the opening statement the Territory will then
put on its evidence. Counsel for the defense may
make his opening statement after I make mine or
he may reserve it.

Mr. Dwight: Counsel is supposed to make his
opening statement. He has a right to set forth

The Territory of Hawai 47

only the case of the prosecution. I except to counsel
giving the jury a lecture.
The Court: Objection will be overruled.
Mr. Dwight: Exception.
(Mr. Young continued his opening statement
to the jury on behalf of the plaintiff, in the
course [8] of which he said :)

After the evidence is put on for the Territory,
then the defense may make their opening statement,
as they see fit. At that time the defense will put
that on.

Mr. Dwight: I object to this. I except to coun-
sel’s remark.

Mr. Young: I suggest the jury should know this.

The Court: Proceed.

Mr. Dwight: May I save an exception?

(Mr. Young continued his opening statement
to the jury on behalf of the plaintiff, in the
course of which he said:)

After the evidence is all in, gentlemen of the jury,
you will hear the argument of the prosecution. We
have the first argument because we have the burden
of proof. After that the defendant will argue. After
you have heard all the evidence and all the argu-
ment in the case, you will then be instructed as to
the law in this case, so you must wait until you have
heard everything before you know what the law is
in the case.

Mr. Dwight: I submit counsel’s opening state-
ment is entirely out of place.

48 Ilene Warren vs.

The Court: That is just preliminary and instruc-
tive for the jurors.
Mr. Dwight: May I save an exception?
(Mr. Young continued his opening statement
to the jury on behalf of the plaintiff, in the
course [9] of which he said:)

I am going to read you, gentlemen of the jury,
the indictment returned by the grand jury in this
case, reading from the original indictment.

(The indictment was read in its entirety)
To this indictment, gentlemen of the jury, defend-
ant has entered her plea of not guilty. Her plea
put im issue each and every material allegation of
that indictment. Out of fairness to this defendant
I tell you that that indictment is not evidence
against her and should not be considered as evidence
against her. It is merely a formal charge against
this defendant. The Territory, gentlemen, will
prove to you beyond a reasonable doubt each and
every material allegation as set forth in that indict-
ment. Jam going to make a statement at this time
of the facts briefly as we are going to offer them to
you in evidence. I am not going to make a lengthy
statement of the facts that we expect to prove be-
cause I feel that the witnesses in this case can give
you a better story of what happened than I ean.
As I stated before, that is the only reason I am
giving you a statement. We are going to prove,
gentlemen of the jury, that on August 3, 1937, the
defendant, Ilene ‘‘Speed’’ Warren, was operating a

The Territory of Hawai 49

house of prostitution at Wahiawa in the City and
County of Honolulu. On that date seven police offi-
cers met at the Wahiawa court house. One of those
officers was dressed in civilian clothes. He went to
the house of Ilene ‘‘Speed’’ [10] Warren, as any
man would in civilian clothes, knocked at the door,
asked for a woman and they allowed him entrance
into the place. After he was in there he found one
of the oeccupants—girls in there, one by the name of
Billie Penland just about to commit an act of pros-
titution. By a pre-arranged signal he blew a whistle.
Two officers were stationed on the back of the
house, not on the lot of ‘“‘Speed’? Warren but on
an empty lot, and the other four officers were sta-
tioned out on the front street, not on the property
of ‘“Speed’’. About nine o’clock they heard the
shrill blast of a police whistle. They came onto the
premises, four police officers,—Caminos, another
officer by the name of Kam Yuen. The four of them
approached the house, the front door of the house,
made known to the oceupants therein that they were
police officers. The door refused to open as though
a fight or something was going on inside. ‘They at-
tempted to knock down the door, then Caminos
discovered the door did not open in but that it
opened out. There was nothing on the door, no
handle, no knob. They attempted to pull the door
by reaching up and grabbing a metal sheet. Wah
Choon Lee, the deceased, grabbed that piece of
metal.

50 Ilene Warren vs.

Mr. Dwight: At this time, may it please the
Court, I except to counsel’s remarks as offering
to prove something which this Court has sup-
pressed, offering to prove evidence that has been
suppressed by this Court. [11]

Mr. Young: Counsel has not stated anything
that has been suppressed by the Court.

Mr. Dwight: He made a statement about a plate.

The Court: The objection will be overruled.

Mr. Dwight: May I save an exception?

(Mr. Young continued his opening statement
to the jury on behalf of the plaintiff, in the
course of which he said:)

That it was raining at the time; that he made a
perfect ground so far as that metal (iron) and the
grasping of the door is concerned; that he received
at that time a deadly charge of electricity and he
was killed almost instantaneously and never re-
gained consciousness. He was taken fifteen minutes
later to the Army hospital at Schofield, where he
was pronounced dead, never regaining conscious-
ness. We will prove by experts that the conditions
under which this happened made this door a danger-
ous thing to human life.

Mr. Dwight: Can my objection and exception go
to counsel’s remarks and exceptions to the Court’s
ruling ?

The Court: Exception may be noted.

Mr. Dwight: On the further ground it is made
simply to prejudice the jury against the defendant.

The Territory of Hawau 51

The Court: Let the record so show.
(Mr. Young continued and completed his
opening statement on behalf of the plaintiff
to the [12] jury, as follows:)

We will further prove that while this was taking
place on the outside the defendant was the owner
and occupant of these premises ; that she was oper-
ating a house of prostitution ; that at that time there
were two prostitutes in that house plying their un-
lawful trade; that the defendant did throw the
switch that gave this deadly charge; that she did it
maliciously. In order to prove the identity of the
defendant, in order to prove the background of this
affair, we are going to show you by evidence that
about two years previous to this time her place was
raided; the defendant’s place was raided by the
police; she was placed under arrest; that she ob-
jected to this manner of treatment and she thought
that she would stop it if it ever happened again and
hired a man to put in that deadly epuipment for the
purpose of keeping drunk soldiers away, who fre-
quented her place, and for the second reason for
keeping police officers away. We will prove that by
other prostitutes. We will prove that this all hap-
pened here in the City and County of Honolulu.
Gentlemen, when we have finished our proof, the
Territory is going to ask you for a verdict of guilty
of murder in the second degree. |

Mr. Dwight: May I reserve my opening state-
ment?

5? Ilene Warren vs.

The Court: Mr. Dwight may reserve his opening
statement until the termination of the prosecution’s
case. Proceed now with the evidence of the prosecu-
tion.

[13]

WITNESSES FOR THE PLAINTIFF
WILLIAM ERNEST BELL,

called as a witness on behalf of the plaintiff, being
first duly sworn, testified as follows:

Direct Examination
By Mr. Young:

@. What is your name, please?

A. William Ernest Bell.

Q. What is your occupation?

A. Draftsman for the Planning Commission of
the City and County.

Mr. Young: Just face towards the jury, Mr.
Bell, so they can hear everything you say and speak
up a little louder.

Q. How long have you been a draftsman for the
City and County of Honolulu?

A. For the last four years.

@. What are your educational qualifications to
act as a draftsman ?

A. It runs in the same line as engineering. J
am supposed to know drafting. I took a post grad-
uate from Stanford and am a high school graduate.

Q. Approximately how long have you been act-
ing in your capacity ?

The Territory of Hawa ae

(Testimony of William Ernest Bell.)

Mr. Dwight: Oh, I will admit the witness’ quali-
fications.

Q. Now, Mz. Bell, did you have occasion at my
request to go out to Wahiawa and take measure-
ments of certain streets out there and locate certain
houses that you found on those streets?

A. Yes, sir. [14]

Q. Did you do that? A. Yes, sir.

Q. When was that? A. Monday.

Q. Did you make a plan at my request?

A. Yes.

Q. Did you draw that to scale?

A. Yes, sir.

Q. What was the scale that you drew that to?

A. One to twenty.

Q. Will you just tell us what streets you sur-
veyed ?

A. It was off California, Olive Street, Avacoda,
two Hawaiian names,—I can’t remember exactly
how you pronounce them—Neal Street and the rail-
road.

Q. You later prepared a draft of that?

A. Yes.

Q. I am going to show you a plan here (pro-
duces a paper). Just take one end. Will you tell
the Court whether or not this is the plan that you
drew ? |

A. (Examining the same) Yes, that is the plan.

Mr. Dwight: This was drawn about

54 Ilene Warren vs.

(Testimony of William Ernest Bell.)
A. One inch to twenty feet.

By Mr. Young:
Q. This is a true and correct plan of what you
saw and measured out there ? A. Yes.

Q. Can you locate some of these?

A. This is the court house (indicating); Cali-
fornia off Kamehameha (indicating); First Na-
tional Bank, Japanese School (indicating). Those
other houses I took them off the tax maps, not
exactly the outside outline [15] but just to show
more or less where the houses are situated. It indi-
cates the houses are on certain lots.

Q. And each lot you have a building on, there
is a building? A. Yes.

Q. This is the railroad down there (indicating) ?

A. Yes.

Q. Your legend there indicates just exactly what
it means here?

A. A round cirele means electric light poles
just about in that direction.

Q. ‘*X” means “railroad crossing’’?

A. “X” means ‘‘railroad crossing.”’

Q. Spots of green? A. Hedging.

Q. You found those on the premises?

A. Yes, I found those on the premises. I drew
those to seale.

Cross Examination
By Mr. Dwight:
©. You say that the houses are not properly
located ?

The Territory of Hawaun 519)

(Testimony of William Ernest Bell.)

A. They are properly located. As far as the
outline of the house are, there may be a little
change.

Q. I see some names here (indicating on map).

A. I took them from the tax office. I have the
right house in the right location.

Q. There is a dwelling (indicating on map). I
draw your attention to this lot that seems to have
more pegs on it than any other, the one with the
hedge and the sisal plant, I notice. Did you check
to see who owned [16] that property?

Mr. Young: The owner is Marvin Connell. That
is the present registration at the tax office; they are
the responsible owners.

A. Transferred from the first name above.

Q. That transfer was about four years ago?

A. I couldn’t say; I don’t know how often the
transfers were made.

Q. Do you know that the tax office indicates the
name Marvin Connell was the owner of the prop-
erty with the date? A. Yes.

Mr. Dwight: I am going to object. It is incom-
petent, irrelevant and immaterial. I don ’t see what
bearing this map will have on the issues. My gen-
eral objection is it is incompetent, irrelevant and
immaterial. There is no connection here whatever
with the defendant. Somebody else owns the prop-
erty.

The Court: The Court will admit this map in
evidence as Exhibit A for the Prosecution, subject

56 Ilene Warren vs.

(Testimony of William Ernest Bell.)
to a motion to strike, if it is not connected up with
this defendant in a material, relevant and compe-

tent way.
Mr. Young: Q. Mr. Bell, I understand you got
this name from the tax office? A. Yes.

The Court: Subject to the motion to strike
later, it is introduced as Exhibit A for the Prose-
cution.

(The paper referred to was received in evi-
dence and marked ‘‘Prosecution’s Exhibit A.’’)
[17]

Mr. Young: No further questions.

Mr. Dwight: No questions.

ere

PERRY W. PARKER,

called as a witness on behalf of the plaintiff, being
first duly sworn, testified as follows:

Direct Examination

By Mr. Young:

Q. What is your name?

A. Perry W. Parker.

Q. What is your occupation, Mr. Parker?

A. Detective with the Honolulu Police Depart-
ment.

Q. How long have you been a detective for the
Honolulu Police Department ?

A. About six months.

The Territory of Hawau 57

(Testimony of Perry W. Parker.)

Q. How long have you been with the Honolulu
Police Department? A. About five years.

Q. About five years. What were your duties be-
fore you were a detective?

A. J was in the Patrol Division, Radio Patrol.

Q. Do you know a person by the name of [lene
Warren alias ‘‘Speed’’ Warren?

ay Wes, JU cle |

Q. Is she in court here this morning?

A. Yes.

Q. Will you indicate where she 1s?

A. She is sitting to the right of Mr. Dwight
there (indicating).

Mr. Young: May the record show the identifi-
cation ?

The Court: The record may show that the [18]
witness indicates the defendant.

Q. Do you know her by any other names?

Mr. Dwight: Immaterial; objected to on that
ground.

Mr. Young: It is for the purpose of identifica-
tion.

Mr. Dwight: She has been identified by this
witness.

Mr. Young: It is very relevant. She might be
eoing by this name on the map.

My. Dwight: The witness has definitely testified
and he gave her name.

The Court: Objection will be sustained.

58 Ilene Warren vs.

(Testimony of Perry W. Parker.)

By Mr. Young:

Q. Mr. Parker, what relations, if any, have you
ever had with this woman?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial; having no bearing upon the
issues, this witness’ testimony. The statute of limi-
tations will prevent any reference to that; it is too
remote. Still the additional ground is they are
attempting to impeach this witness and she has not
yet taken the stand and she does not have to take
the stand.

The Court: What is the purpose of this ques-
tion ?

Mr. Young: I can lead more directly to the
point. Counsel objected it is leading.

Mr. Dwight: I am objecting because I know
what is coming. Counsel knows what is coming [19]

Mr. Young: I will withdraw the question.

Q. Now, Mr. Parker, in your official capacity
do you know where Ilene ‘‘Speed’’ Warren lives?
Yes.

Where does she live?

On Muliwai Street at Wahiawa.

On Muliwai Street at Wahiawa?

Yes.

How many times, approximately, have you
been to that place?

A. Oh, I would say I have been there at least
ten times.

OForop

The Territory of Hawai 59

(‘Testimony of Perry W. Parker. )

Q. You have been there at least ten times. When
was the first time you were there? About when, just
approximately ?

A. TI believe the first time was on a Federal
liquor raid about three years ago.

Mr. Dwight: IJ am going to move that testimony
be stricken as incompetent, irrelevant and immate-
rial, as tending to prejudice this jury and upon the
further ground that prosecution is attempting to
impeach this witness the character of defendant
before she takes the stand. If she doesn’t take the
stand, it is immaterial.

Mr. Young: I believe I made it clear in my
opening statement it 1s a circumstance in this case,
showing the malice, the motive, the identity and
everything behind this case. We have got to have
the background.

Mr. Dwight: May it please the Court, I [20]
take it, that they cannot adduce it on that theory.
IT have stated my legal objection. To begin with,
may it please the Court, this witness, this defend-
ant, does not have to take the stand and her char-
acter is not in issue until she takes the stand and
no evidence can be adduced to impeach her testi-
mony until after she takes the stand. This is in-
competent, irrelevant and immaterial in connec-
tion with this particular charge. To begin with, it
is too remote.

The Court: Objection will be overruled.

60 Ilene Warren vs.

Mr. Dwight: Before the Court rules, I would
like to take a recess to show the Court authorities.

Mr. Young: In order to obviate any further
objections along this line, I suggest your Honor
dismiss the jury and I will make a full and com-
plete offer of proof so that your Honor will know
what the prosecution proposes to prove.

Mr. Dwight: Even assuming that the defendant
does take the stand, this testimony is inadmissible
unless she puts her character in issue.

The Court: It is eleven o’clock, The Court will
take a recess. Any authorities either counsel wants
to advance they can do so in chambers. Court will
take a recess.

Mr. Dwight: From now until tomorrow?

The Court: Until two o’elock.

(A recess was taken until two o’clock

jee teee)) | Peal)

Afternoon Session
In Chambers

(At two o’elock p. m., court convened in
chambers and both counsel present, the fol-
lowing proceedings were had): .

The Court: The record is now open for the pur-
pose of the offer of proof as proposed by Mr. Young
im open court. This is now in the absence of the

jury.

The Territory of Hawait 61

Mr. Young: The last question that was put to
the witness was as to the time that he was at
‘Speed’? Warren’s, the first he had been there.
We propose to offer to prove by this witness that
on or about the first day of June——

The Court: What year?

Mr. Young: (Continuing) 1936, this police of-
ficer went upon the premises of ‘‘Speed’’? Warren,
took her and one Lou Rodgers into custody and
took them to the police station. That is all that we
propose to prove by this witness. The reason we
are offering that proof is to establish a date, a defi-
nite and known time when ‘‘Speed’’ Warren de-
veloped an animosity towards the Police Depart-
ment. We will then connect that up with the other
evidence brought in the case. Let the record show
it is not offered in any way for casting any asper-
sions upon the character of the defendant. If the
incidental effect is that, we can’t help it, the iden-
tity of the defendant in this case being important
because it is a circumstantial evidence case.

Mr. Dwight: I will state my objections. [22]

The Court: Just one minute, before you do that.
Mr. Young, you have no objection to the Court
striking out any words the witness might have used
in giving his testimony of ‘‘arrest”’, ‘‘raid”’ or
‘‘nrostitution’’, or anything of that sort?

Mr. Young: If the witness don’t know that of
his own knowledge, I have no objection to the Court
striking that.

62 Ilene Warren vs.

Mr. Dwight: Now, just a moment,—that is just
exactly what I was trying to avoid and that is ex-
actly what the Supreme Court said was highly im-
proper practice in the Corum decision.

The Court: This is not before the Court.

Mr. Dwight: My objection to this testimony is
that it is incompetent, irrelevant and immaterial.

The Court: Before you go into it, do you object
to having the Court strike the words ‘‘raid’’, or
‘farrest’’ or ‘prostitution’? You don’t object to
that ?

Mr. Dwight: I think the Court should strike
them out and the jury be admonished, but I should
say that type of procedure is highly prejudicial to
the defendant and should not be countenaneced by
this Court, and the Supreme Court has definitely
laid down that rule in the Corum ease, that is, go-
ing to the order of proof.

The Court: The Court will and does now on its
own motion strike the words of the witness of [23]
““raid’’, “‘arrest’’ or any word suggesting the offence
of prostitution.

Mr. Young: As a matter of fact, I will withdraw
the whole question.

Mr. Dwight: We may as well get it clear. Now,
have you that Corum decision? Have you the ad-
vance decision? I want the Court to get the simi-
larity. JI take it from counsel’s remarks that he
was attempting to get into evidence a statement

9

The Territory of Hawai 63

made by the defendant to this witness for the pur-
pose of proving motive.

Mr. Young: I made no such statement.

Mr. Dwight: The offer that counsel makes now
affirmatively shows that it is incompetent, irrele-
vant and immaterial. It affirmatively shows that
the purpose of that testimony 1s simply to put the
defendant’s character in issue and that it is im-
proper evidence to show improper character.

The Court: There was nothing from the ques-
tions testified to that suggested the purpose of rais-
ing the issue of character or bad character.

Mr. Dwight: Arresting them and taking them
to the Police Station; you can’t bring in evidence Gil
the defendant being arrested. You can say that the
defendant was convicted.

The Court: The Court has corrected that. The
form of the question was not objectionable In any
way. The answer responds to that question. The
words of “‘arrest’? and ‘“‘raid’’ the Court has
stricken in protection of the rights of the defendant
and [24] the Court will make it clear to the jury
that the question of the bad character or the char-
acter of the defendant is not in issue, nor is it the
purpose of this evidence to put it in issue.

(The Court took a short recess. )

64 Llene Warren vs.

In Court.

(At 2:35 o’clock p. m., the Court reconvened,
the defendant and respective counsel being
present, and the jurors all present, the follow-
ing further proceedings were had and _testi-
mony was given):

Mr. Dwight: May it please the Court, I want to
apologize to the Court for being late. Shortly be-
fore two o’clock I asked the bailiff in Judge Brooks’
Court to notify this Court that I would be there
for a few minutes. I am sorry that the Court did
not get the word. |

The Court: Thank you. Your apology is ac-
cepted. You gentlemen stipulate the jury is pres-
ent ?

Mr. Young: So stipulated; also the defendant.

Mr. Dwight: Yes.

The Court: Let the record so show. N ow, the
Court has on its own motion stricken from the
record the words which this witness (Perry W.
Parker) has used of ‘‘raid’’, ‘“‘arrest’’ or any sug-
gestion of any offense at this time. The purpose of
this testimony is merely to fix the time and place
and the jury is instructed not to take any evidence
—this evidence which has been stricken in any way
as putting in issue the character of the defendant.
It is not for that purpose at all and should not be
considered by you. [25]

Mr. Young: May we proceed, your Honor?

The Territory of Hawait 65

(Testimony of Perry W. Parker.)
The Court: Proceed.
Mr. Young: ‘Thank you.

Direct Examination

(Continued )
By Mr. Young:

Q. Mr. Parker, you testified roughly as to the
first time that you were at ‘‘Speed’’ Warren’s place.
Do you recall the date of the last time you were
there, approximately ?

A. That was around June 1, 1936.

Q. Around June 1, 1936. About what time of
day did you go there?

A. It was on a Monday night between eight and
nine p. m.

Q. And what did you do, if anything, at that
time in relation to the defendant?

A. The defendant was at her home. I went in
and arrested the defendant and three other girls.

Q. Do you know the names of the girls?

Mr. Dwight: Now, may I have my same objec-
tion to this testimony as incompetent, irrelevant
and immaterial; furthermore, as tending to adduce
in evidence certain evidence that was procured m
violation of the Constitution of the United States,
the evidence in this so-called visit having heen sup-
pressed by the Honorable Judge Peters, the Dis-
trict Magistrate of Wahiawa. I object to this evi-
dence being stated in the presence of the jury.

The Court: I wonder if you, Mr. Parker, in
making your answers will leave out the words

66 Ilene Warren vs.

(Testimony of Perry W. Parker.)

‘arrest’? or “‘raid’’ or anything that implies a
crime or offense at that time. The purpose of [26]
your testimony is not to establish any evidence of
any crime at that time, nor should you put before
the jury there was such a possibility of such a
crime. The Court will strike that word “arrest”
out.

The Witness: What was the question?

The Court: The word ‘‘arrest’’ will be stricken
out and the jury asked to disregard it. The purpose
of this testimony is not to put in issue the character
of the defendant at all but merely to establish the
time and _ place.

Mr. Dwight: May I have my exception to the
ruling? I think it goes further than the Court’s
ruling.

Phe Court: All right. You may have your ex-
ception.

Mr. Young: Mr. Parker, the Court doesn’t want
you to say anything about any legal relations.

Q. I want to know, did you go any place with
her, did you do anything with ‘Speed’? Warren
at that time?

A. I can’t answer that unless I use that word
again.

Q. Did you walk her some place ?

A. I drove her in my car down the police sta-
tion.

Q. Drove from her house? A. Yes.

The Territory of Hawai 67

(Testimony of Perry W. Parker. )

Q. Anybody else with you?

A. They were all together; there were three
other girls and two police officers.

Q. There were three other girls and two police
officers with you? [27]

A. No, we didn’t go all in one car; we split up.

Q. Do you know the names of those oirls ?

A. Yes, I do.

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial. It proves nothing of the
issues raised by this indictment.

The Court: The Court appreciates it is prelimi-
nary evidence and overrules the objection.

Mr. Dwight: Save an exception.

A. Lou Rodgers, Betty Ward and Mollie
Norton.

Q. And you took them to the police station ?

A. That is correct.

Q. Will you step down here? (Indicating Prose-
eution’s Exhibit A tacked on blackboard.)

A. (The witness does as directed. )

Q. Are you acquainted with that eeneral vicinity
at Wahiawa (referring to Prosecution’s Exhibit
A)? Be Aes:

Q. Do you know which street she lives on?

A. Muliwai.

Q. This is Muliwai Avenue; the arrow points
north this way (indicating); Olive Avenue this
way (indicating); Kuahiwi Avenue this way (andi-
cating on Exhibit A); there is a land mark here
(indicating); Bishop First National Bank there

68 Ilene Warren vs.

(Testimony of Perry W. Parker.)
(indicating) ; this is railroad track over here (indi-
cating). You understand this diagram sufficiently
to point out where this house was that you found
““Speed’’ Warren in that day that you testified to?
A. Yes.
Q. Will you point it out on the map, please?
[28]

A. Yes, right here (indicating on Exhibit A).

Q. That was the house?

A. We came out this way (indicating), block
and about a half on the righthand side.

@. Righthand side as you go towards the moun-
tain ? A. Yes, that is right.

Mr. Young: May the record show it is ites lot
marked ‘‘Marvin Connell’’?

The Court: The location designated as “Marvin
Connell.’’

@. Was that the place you took ‘*Speed”’
Warren from in your automobile?

A. Yes, that is the place.

Q@. Those girls came out of that house?

A. Yes.

Q. Betty, Lou and Mollie came out of that
house ? A. Yes.

Mr. Young: No further questions.

Mr. Dwight: I make a motion to strike all of
the evidence of this witness as incompetent, irrele-
vant and immaterial

The Court: Motion denied.

Mr. Dwight (continuing): Having no bearing
on the issues raised by the indictment.

The Territory of Hawai 69

(Testimony of Perry W. Parker.)

The Court: Motion denied.

Mr. Dwight: Save an exception.

The Court: The defendant and these three girls
were the three of them?

The Witness: Three of them.

The Court: Did you later see them some [29]
other place in Honolulu? When they left that house
in your automobile, who was in your automobile
besides yourself ?

The Witness: A. I don’t know but we all ended
up in the vice squad in Honolulu.

By Mr. Young:
Q. Would you recognize any of those eirls if
you saw them again?
A. Yes, I can recognize all of them.
Mr. Young: May I call one for identification,
Lou Rodgers?
(The bailiff calls a woman as directed and a
woman enters the court-room.)

Q. Could you tell me whether or not this 1s one
of the girls? (Referring to the woman who en-

tered the court-room. ) A. Yes.
Q. What is her name? A. Lou Rodgers.
Mr. Young (to Lou Rodgers): Q. What is your
name? A. Lou Rodgers.

Mr. Young: May the record show that Lou
Rodgers was one of the girls in the car at that
time ?

The Court: Let the record so show.

70 Tlene Warren vs.

ALBERT FRAGA,

called as a witness on behalf of the plaintiff, being
first duly sworn, testified as follows:

Direct Examination
By Mr. Young:

Q. What is your name, please?

A. Albert Fraga. [30]

Q. You are a police officer for the City and
County of Honolulu? A. Yes, sir.

Q. How long have you been a police officer, Mr.
Fraga? A. About seven years.

Q. What are your duties, just briefly, as a police
officer ?

A. I am attached to the Identification Bureau,
which takes in the registration of police records
and the taking of photographs.

@. And you take photographs, then, in connec-
tion with your official duties? A. Yes, sir.

@. Will you state whether or not you ever knew
a person by the name of Wah Choon Lee?

a dad:

(). Did you know him personally?

A. Yes.
@. Is that person alive or dead, to your knowl-
edge? A. No, sir, he is dead.

@. In connection with your official duties, did
you ever photograph the body of Wah Choon Lee?

A. I did. :

Mr. Dwight: I will admit Wah Choon Lee is
dead.

The Territory of Hawai ii.

(Testimony of Albert Fraga.)

The Court: Let the record so show.

Q. Where did you photograph him ?

A. City and County morgue.

Q. When? A. August 4. [81]

Q. What time? A. About ten a. m.

Q. Did you develop those negatives that you
took ? A. I did.

Q. Will you recognize the. pictures that you de-
veloped ? A. Yes.

Q. Will you look at these two pictures and see
if they are the pictures you took? Handing pic-
tures to witness. )

Mr. Dwight: Let me see them. (Examining
same. )

Q. Will you look at these pictures, please, and
state what they are, if you know? (Handing pic-
tures to witness.)

The Court: Q. Do you know?

A. Yes.

Q. What is this?

A. This represents the body of officer Wah
Choon Lee, as I saw him at the morgue on the
morning of the fourth of August, 193%, at ten a. m.,
after his clothing was taken off.

Q. You took this photograph and you developed
it yourself? A. Yes.

Mr. Young: May this be received in evidence ?

12 Ilene Warren vs.

(Testimony of Albert Fraga.)

Mr. Dwight: Objected to as incompetent, ir-
relevant and immaterial, as prejudicial to the de-
fendant. There is no necessity for the accumula-
tion of evidence. If it is for the purpose of proy-
ing death, the defendant has already admitted that
Wah Choon Lee is dead. It is cumulative; it is
not the best evidence; it is secondary; it proves no
fact in issue because that particular fact has been
admitted. [32]

The Court: Is that your only purpose ?

Mr. Young: My purpose is to establish the fact
of death, establish the identity of deceased and for
the further reason we offer to prove by one of these
pictures a very material part of the evidence indi-
cating a certain wound upon the deceased.

Mr. Dwight: That is the reason I objected. It
is not the best evidence. They have definite testi-
meny; they can have direct testimony as to the
nature of any marks on the body of the deceased.
This is secondary. I object on the ground it is not
the best evidence.

Mr. Young: Photographs are always admissible.
They are true and correct of what they saw.

Mr. Dwight: They took the picture and are
using it for an entirely different purpose to prove
something that can be proved by direct evidence.
They had a doctor perform the autopsy. He is the
only person who can testify. They are bringing in
something that is not the best evidence.

The Territory of Hawai 73

(Testimony of Albert Fraga.)
The Court: The Court will overrule the ob-
jection.
Mr. Dwight: Save an exception.
The Court: Exception may be noted. It will be
received as Exhibit B.
(The picture referred to was received in evi-
dence and marked ‘‘Prosecution’s Exhibit
B.’’) [33]

By Mr. Young:

Q. Now, this other picture that you have in your
hand, will you please tell the Court and jury what
that is without showing the jury?

A. This represents the upper portion of officer
Wah Choon Lee, showing a portion of his right
hand.

Q. Is this the way you saw it at the time you
took it? AG de ce site

Q. When did you take that picture?

A. On the morning of the 4th of August, 1937.

Q. This is a true and correct copy of that nega-
tive, that photograph that you took at the time and
place? A. (Examining the same) Yes.

Q. This is Wah Choon Lee, the man you knew ?

A. Yes, sir.

Mr. Young: May this be received in evidence as
Territory’s Exhibit ‘‘C”’, I believe, it is?

By the Court:

Q. Both of these pictures were taken at the same
time ? A. Yes.

Q. August 4? A. August 4.

714 Ilene Warren vs.

(‘Testimony of Albert Fraga.)

@. What time? A. At about ten a. m.

Mr. Dwight: What was the last exhibit, the first
photograph ?

The Court: B.

Mr. Dwight: May it please the Court, I object
to the introduction in evidence of this picture [34]
upon the ground already stated, to-wit, that for the
purpose of proving death the fact has already been
admitted; second, that it is cumulative and the pho-
tograph already in evidence shows the body of the
deceased, which was introduced in evidence over
objection, and I further object, may it please the
Court, upon the ground that it is not the best evi-
dence. I understand that this particular photograph
is being offered for a certain definite purpose, which
can be proved by direct testimony.

The Court: What is the purpose of offering Ex-
hibit C in addition to Exhibit B?

Mr. Young: ‘‘C’’, the particular purpose is
showing the nature of the wound. The authorities
are all agreed that a picture of the deceased may be
put in evidence where the nature of the wound is
material to the prosecution’s case. Counsel cannot
stipulate our case. We have a right to prove it the
way we want to. I can furnish your Honor ample
authorities along that line.

Mr. Dwight: After all the Court conducts the
trial and not the Public Prosecutor. I don’t think
counsel’s remarks need answering. That particular
picture is a part of the body. That can be proved

The Territory of Hawa Tipp

(Testimony of Albert Fraga.)

by the doctor who conducted the autopsy, the only
man who is an expert and who can definitely de-
scribe any marks on the body. That does not indi-
cate anything. How do I [85] know it wasn’t put
there by someone else.

The Court: Objection will be overruled.

Mr. Dwight: Save an exception. May I be per-
mitted to cross examine this witness before the
Court finally rules on this photograph?

The Court: You may cross examine him.

Cross Examination

By Mr. Dwight:

Q. Mr. Fraga, did you touch the body at any
time before you photographed it?

A. Yes, sir.

Q. Did you put any powders on the hand of this
deceased before you photographed it?

A. No, sir.

Q. You didn’t use any means common to photog-
raphers to bring out certain things?

A. No, si
Q. You took this picture of the body just as you
saw it in the morgue? A. Yes, sir.

Q. You don’t know who had handled the man
between the time you took the picture and the time
he died ? A. I don’t know.

When did you take this picture?
August 4, 1937.
Had an autopsy been performed?

> Ore

No, sir.

76 Ilene Warren vs.

(Testimony of Albert Fraga.)
Q. It was taken before the autopsy was per-
formed on the body? A. Yes, sir. [36]
The Court: It will be received as Exhibit “C”
in evidence.
(The picture referred to was received in evi-
dence and marked ‘‘Prosecution’s exhibit C.’’)

Mr. Dwight: May I save an exception?
The Court: Exception noted.
My. Young: No further questions.
The Court: Any further cross examination?
Mr. Dwight: No further cross examination.
Mr. Young: Showing to the jury, now, the Ex-
hibits ‘‘B’”’ and ‘‘C”’ in evidence, your Honor.
(Mr. Young handed the pictures, Prosecu-
tion’s Exhibits ‘‘B’’ and ‘‘C’’, to the jury.)

nes

LOU RODGERS,
called as a witness on behalf of the plaintiff, being
first duly sworn, testified as follows:

Direct Examination

By Mr. Young:

Mr. Young: Will your Honor excuse me for just
a moment? I would like the jury to finish with the
exhibits before I question her.

The Court: All right.

Q. What is your name, please?

A. Lou Rodgers.

Q@. Where do you live? A. Wahiawa.

The Territory of Hawau T7

(Testimony of Lou Rodgers. )

Q. What street in Wahiawa?

A. Citrus and Olive.

Mr. Young: Will you speak just a little louder,
please, Miss Rodgers, and face the jury, [387] please.
Just speak up so we ean all hear you.

Q. How long have you been living at Wahiawa’?

A. Four years.

Q. Do you know a person by the name of Lene
Warren alias ‘‘Speed’’ Warren? A. I do.

Q. How long have you known her?

A. Four years.

Q. Is she in the court-room here now?

A. Yes.

Q. Will you indicate where she is?

A. There (indicating the defendant).

Mr. Young: May the record show the identifica-

Q. You know this person by any other names?

A. No, I don’t

The Court: joa the record show the witness
identified the defendant.

Q. You just know her by Ilene ‘Speed’? War-
ren? A. I do.

Q. When did you first meet her?

A. August 24, 1934.

Q. 1934. Did you know her in the year 1936?

A. I did. |

Q. There has been some testimony that you were
present at her house on June 1, 1936. Do you recall
whether or not you were? A. I was.

78 Ilene Warren vs.

(Testimony of Lou Rodgers. )
Q. At what place was that? A. Wahiawa.
[38]

Q. What place?

A. Ican’t pronounce the street.

Q. Who was in charge? What kind of a place
was it?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial; upon the further ground it is
an attempt to put the character of this witness in
issue.

Mr. Young: I want to know whether it was a
store, hotel or what, your Honor. I submit the
question, your Honor.

The Court: Objection overruled.

Mr. Dwight: Exception.

The Court: Exception noted.

Q. What kind of a building was it?

A. A frame building.

®. Was it a house? A. It was a home.

Q. Do you know whose home it was?

A. Hers (indicating the defendant).

Q. Now, just a little louder, please?

A. Hers (again indicating the defendant).

Q. You mean by ‘‘hers’’ Ilene Warren ?

A. Yes.

Q. Do you know from your own knowledge
whether or not she owned that place?

A. I know.

Q. You know?

A. Ido not know whether she does.

The Territory of Hawai fi

(Testimony of Lou Rodgers.)

Q. You do know she was living there at the time,
June 1, 1936, is that correct? A. Yes. [39]

Q. What were you doing at the house at that
time ?

Mr. Dwight: Objected to as incompetent, ir-
relevant and immaterial. What has that got to do
with the issues here, your Honor?

Mr. Young: Does your Honor desire me to make
an offer of proof in order to obviate any more
objections along these lines?

The Court: No objections to making an offer of
proof. The jury will remain in their seats and the
Court will step in chambers for that offer of proof.

In Chambers 3:00 p. m.

(Thereupon the Court and respective counsel
reconvened in chambers and the following pro-
ceedings were had:)

The Court: Just let the record show this is an
offer of proof suggested by both the counsel for the
Territory and defense, meeting in chambers, not in
the presence of the jury.

Mr. Young: We propose to prove by this witness
along the line that is being followed now in the
examination, that at the time of the police raid, at
the time the officer took her into eustody with
‘““Speed’’? Warren, she was a prostitute in the home
of ‘‘Speed’’ Warren; she was working for ‘‘Speed’”’
‘Warren as a prostitute on that date, and the pur-
pose of that testimony, your Honor, is to show that

80 Ilene Warren vs.

‘Speed’? Warren at that time built up an animosity
towards the police, which later grew and which
gave her the foundation and [40] basis leading up
to this particular case, the motive and malice. It is
circumstantial evidence and we are entitled to show
why she barricaded that place, what the foundation
was.

Mr. Dwight: If counsel has any statement from
Lou Rodgers or if Lou Rodgers will testify that
the defendant made any statement concerning this,
possibly it would be admissible, provided they could
show the corpus delicti.

Mr. Young: She could say whom she worked for.

Mr. Dwight: That has no place in this. You are
bringing directly to the jury the character of this
defendant; that is just what you are doing.

The Court: Just one minute.

Mr. Dwight: I object to the offer of proof on
the ground that the offer of proof is not material
to any of the issues raised by the indictment; that
the offer of proof directly brings before the jury
the question of the defendant’s character; upon the
further ground that if the offer doesn’t offer to
prove any statement—that is the difficulty—if they
offered to prove a statement of the defendant, that
and that alone would be admissible, and that is the
only thing they could show to show motive.

(The offer of proof on pages 40 and 41 was
read.) (Augument. )

The Territory of Hawai 81

Mr. Young: I will state for the purpose of the
record I am going to prove by this wit- [41] ness
what I have stated in the record and I will give the
Court the assurance at this time that other witnesses
will be produced, other than this witness, to show
that this animosity began at this time and existed
up until the time of the murder.

The Court: In other words, that this witness is
merely a part of a general scheme and theory.

Mr. Young: That is right. In other words, to be
more frank, ‘‘Speed’’ Warren at that time devel-
oped an animosity towards the police. She had
determined she was going to keep the police out
of her place, if she had to barricade it, so that she
could ply her trade. When the police did raid her,
she was plying her trade of prostitution, showing
a link between the case to her motive and identity.

Mr. Dwight: The only question the Court has to
pass on here is the relevancy of a fact and that
fact was that on June first ‘‘Speed’’ was running
a house of prostitution and on June first this wit-
ness was a prostitute in her house. Where is the
materiality of that statement?

The Court: The Court is ready to rule. The ob-
jection to the offer of proof is overruled. ‘The
purpose of this offer 1s apparent from the offer
and is not made to put in issue the character or
reputation of the defendant. It is offered as a: cir-
cumstance in proof of motive, [42] malice and

identity.

82 Ilene Warren vs.

(‘Testimony of Lou Rodgers.)

Mr. Young: Malice, motive and identity.

Mr. Dwight: May I save an exception to the
Court’s ruling ?

The Court: You may have your exception.

Mr. Dwight: And may my exception go to her
entire testimony ?

Lhe Court: Objection and exception noted to this
entire offer of proof and testimony.

in Countealloaoaetiae

(Thereupon the Court and respective counsel
reconvened in the court-room and the following
proceedings were had and testimony given:)

(The reporter read the last question on page
40, as follows:)

“Question: What were you doing at the
house at that time ?’’

The Court: Will you please answer that ques-
tion?
The Witness: I don’t understand it.

By Mr. Young:

Were you working there?

I was living there.

What else were you doing, if anything?
Keeping house.

Where did you live at that time?

. I lived with Ilene Warren.

Mr. Young: Beg pardon?

A. (Repeating) I lived with Ilene Warren.
Q. How did you make your money?

rOPrOPO

The Territory of Hawai 83

(Testimony of Lou Rodgers. )

Mr. Dwight: I object to that as incompetent, [43]
irrelevant and immaterial, your Honor, the ques-
tion having already been asked and answered.

The Court: Objection overruled.

Mr. Dwight: Note an exception.

The Court: Exception allowed.

Mr. Dwight: Has this witness been informed
as to her constitutional rights?

The Court: Will you read the question?

(The reporter read the last question on page
43, as follows:

“Question: How did you make your
money ?”’

By Mr. Young:

Q. In other words, did you do some work there
of some kind by which you got some money?

A. Well, I better not answer that.

Q. Why don’t you want to answer that?

(There was no answer. )

Mr. Young: I think your Honor should advise
the witness.

By The Court:

Q. You say you don’t want to answer that ques-
tion? A. I would rather not.

Q. You say it is because you don’t want to 1n-
eriminate yourself ? A. That is right.

84. Ilene Warren vs.

(Testimony of Lou Rodgers.)
By Mr. Young:

@. I understand you refuse to answer that be-
cause you claim your constitutional privilege; is
that nght? A. Yes.

@. You saw this police officer that left the
court- [44] room about the time you came in?

A. Yes.

Q. Did you go any place with him on June 1,
1367 A. Not on June first.

Q. When did you go with him?

A. June second.

Q. Where did you go with him?

A. Police Department.

(). And who went with you?

A. Ilene Warren.

Q. The defendant? A. Yes.

@. Any other girls? A. Two others.
Q. Two of you? A. Two other girls.

@. Do you know what those girls were doing
there while in ‘‘Speed’’ Warren’s house?

A. No.

Q@. You do not. Were they living there with
you? A. I don’t know.

The Court: Mr. Young, the grand jury desires
to make its partial report to me. The jury not hav-
ing had a recess since two o’clock, the Court will
therefore declare a recess and ask them to leave the
room, together with all witnesses and all others not
connected with the grand jury.

The Territory of Hawai 85

(Testimony of Lou Rodgers.)
Mr. Dwight: I think they can remain; they
are making a partial report. [45]
(A brief recess was taken. )
(The reporter read the last question and and
answer on page 45, as follows:)
“Question: You do not. Were they living
there with you?
‘Answer: I don’t know.”’

By Mr. Young:

Q. Do you know whether they were living with
you?

Mr. Dwight: Objected to as already asked and
answered.

The Court: Objection overruled.

A. They were living in the same house.

Q. Do you know of your own knowledge what
they were doing there? A. Yes.

Q. What?

A. You mean going in and out, visiting them.

Q. Now, Miss Rodgers, did you ever have any
conversation with ‘‘Speed’’ Warren after the time
that you went down to the station, after the police
officer Parker took you away from there, did you
ever have any conversation with her in regard to
the police?

Mr. Dwight: May I ask the Court to instruct
the witness to answer that yes or no?

The Court: (To the witness) Answer that yes
or no.

386 Ilene Warren vs.

(Testimony of Lou Rodgers.)

The Witness: Repeat that again so I can have
it plainer.

(The last question was read.)

A. Yes.

By Mr. Young:
Q. What was the nature of that conversation ?
[46]

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial, as calling for hearsay evi-
dence, having no bearing upon the issues in this
case.

The Court: Objection overruled.

Mr. Dwight: Save an exception.

By Mr. Young:

Q. Will you tell us that entire conversation,
what she said to you?

Mr. Dwight: Fix the date.

€). When was the time of this conversation 2

A. Sometime after the second of June.

@. About how long, approximately 2?

A. I don’t know; just about two days, possibly
a week.

Q. Now, you tell us what that conversation was,
what she said to you.

A. Well, she wanted to wire the building up
with electricity. She wanted to know what I thought
about it so I gave her my opinion. She went down
to see her attorney, to see if it would be O. K.
Her attorney said he didn’t think

The Territory of Hawai 87

(Testimony of Lou Rodgers.)

Mr. Dwight: I am going to move to strike that
answer as incompetent, irrelevant and immaterial,
calling for hearsay, unless the witness was person-
ally present.

The Witness: I was.

By Mr. Young:

Q. Miss Rodgers, just before we go to this at-
torney episode, what else was said in regard to this
equipment, this wiring of the house in your pres-
ence before she went [47] to the attorney?

A. Nothing, except

Mr. Dwight: I am going to make a further ob-
jection on the ground it is incompetent, irrelevant
and immaterial, as compelling this defendant to be
2 witness against herself, as evidence having been
obtained after an illegal search and seizure by the
government authorities and it was knowledge ob-
tained in that illegal search that caused this wit-
ness to come here to testify. I cite the case of ——

Mr. Young: Submit the question.

The Court: Objection overruled.

Mr. Dwight: Exception.

By Mr. Young:

Q. What was the nature of that conversation,
Miss Rodgers ?

A. Well, she just wanted to know what she had
to do to fix the place up on account of burglars
and drunken soldiers. In a kidding way I said,
‘“Put some iron bars around the place.’’ She talked

88 Ilene Warren vs.

(Testimony of Lou Rodgers.)
over about putting electric wires around the place.
She went to consult her attorney.

Q. Did she say that had any relation to the
police?

A. Well, yes and no. She didn’t offhand say it.
She said it would help to get rid of the cops or to
keep them away.

Q. That was a few days after the raid?

Eeeces:

Q. Now, did you hear her talk to any other
person about this matter, about the wiring of her
place and so on? [48] A. Yes.

Q. What persons? A. John Kiehm.

@. Where did she talk to John Kiehm?

A. I don’t remember whether it was at the
garage or her house.

Q. It was either one of the two places, you can’t

remember, is that true? A. Yes.
@. Will you know John Kiehm if you saw him
again ? A. Yes.

Mr. Young: (To the Bailiff) Will you call
John Kiehm?

(The bailiff responds by bringing into the court-
room a man.)

Q. Look at this gentleman. Do you know who
he is? A. Yes.

Q. Who is he? A. John Kiehm.

@. Is that the same John Kiehm you are testi-
fying about? A. Yes.

The Territory of Hawai 89

(Testimony of Lou Rodgers.)

Mr. Young: (To the person identified) What
is your name? A. John Kiehm.

Mr. Young: May the record show the identifi-
eation of John Kiehm by this witness, 1f your
Honor please?

The Court: Let the record so show.

By Mr. Young:

Q. What did ‘“‘Speed’? Warren say to John

Kiehm about this wiring you are talking about?
[49]

A. She wanted to know if he could do it if she
got the wire and the material.

Q. Is there any other conversation that you re-
member at that time?

A. No, I don’t recall any in my presence at the
time she was asking.

Q. You were living with ‘Speed’? Warren at
that time? A. I was.

Q. When did you leave her place, if you recall ?

A. August 4, 1936.

Q. That is the August following the June that
you are talking about, is that correct ?

A. Yes.

Q. Now, did you go any place else and hear her
talk to anybody else about this wiring?

No one else, except an attorney.
Who was that attorney?
Charles Dwight.

Who is that attorney?

Charles Dwight.

>POPOP

90 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. Where did ‘‘Speed’’ Warren speak to him?

A. In his office.

Q. Where is his office?

A. Damon building.

Q. You recall the conversation that passed be-
tween him and ‘‘Speed’’ Warren in connection with
the wiring ?

A. She went up and asked him about it. He said
he did not think it would do any harm. She said,
‘“Well, we will see about it.”’

Q. Did she tell him why she wanted the wiring
around [50] there ?

A. The same reasons she told me.

®. To keep burglars and the police away and
the drunken soldiers, is that right ? A. Yes.

Q. These three things? A. Yes.

Q. Now, do you know personally how ‘Speed’?
Warren felt about the officers taking her away ?

Mr. Dwight: That is calling for the conclusion
of this witness. I submit it is incompetent, irrele-
vant and immaterial. |

The Court: Objection sustained.

By Mr. Young:

Q. Now, after this—How long after the conver-
sation—I will withdraw the question. Do you know,
of your own knowledge, whether after this conversa-
tion with Mr. Dwight and after the conversation
with Kiehm, do you know of your own knowledge
whether any electrical equipment was ever put in

The Territory of Hawai 91

(Testimony of Lou Rodgers. )
that house after you were there? A. Yes.
Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial and is compelling the defend-
ant to be a witness against herself.
The Court: Objection overruled.
Mr. Dwight: Exception.
The Court: Exception noted.

By Mr. Young:

Q. Your answer was yes? A. Yes. [51]

Q. Will you please tell us just what you know
about that electrical equipment that was put in the
house, that was put in there after this conversation
with Mr. Dwight and Kiehm, everything you know
about it?

A. Well, she bought the wiring. So far as L
know Kiehm put it in from the front door over to
another door, to the back door.

Mr. Dwight: May my objection and exception
run to all this testimony?

The Court: It may.

A. (Continuing) I said when she got the mate-
rial and everything for this wiring and a steel plate
for the door, she got Kiehm down there. They fixed
the wiring up from the front door to the back door.
By Mr. Young:

Q. Was there any other device in there that you
recall ? A. Switch. |

Q. Where was the switch located? Do you know?

A. On the stairway going up on the righthand
side.

92 Llene Warren vs.

(Testimony of Lou Rodgers.)

Q. That is on the ground floor?

A. As you come in the front.

@. Now, was there any other equipment that
you saw there of an electrical nature?

A. Batteries, I guess it was.

@. Where was that located?

A. At the top of the door facing—leading down-
stairs.

@. Do you know whether or not, from your own
personal knowledge, the front door was wired to the
switch ? A. Yes.

@. Are you acquainted with all the rooms down-
stairs [52] in that house? A. Yes.

Q@. You know just about where they are lo-
cated ?

A. I did up until the time T left.

Q. Up until the time you left. How many rooms
are there downstairs ?

A. There is one large living-room and four bed-
rooms, a closed-in back porch, and a hallway, a
small ante-room leading from the front door into
the living-room.

Q. Any stairs leading from the ground floor to
the top floor?

A. There is one on the lefthand side and one
on the righthand side.

@. As you come in the front door?

A. Yes.

Q. You believe you could draw or sketch a little
diagram of this house for us? A. Yes,

The Territory of Hawair 93

(Testimony of Lou Rodgers. )

Q. (Continuing) of the ground floor? Now,
Miss Rodgers, I am showing you a map

Mr. Dwight: I object to the exhibiting of this
map or whatever it is to this witness. If this wit-
ness wants to draw a plan, the witness can draw a
plan. Certainly she has to testify from her own
knowledge, but not by having it fed to her by other
people. .

Mr. Young: If your Honor please, she has given
in her testimony the number of rooms, what they
were and so on. By the Court looking at this, it will
see this is nothing but lines drawn. [53] I am going
to ask the witness whether or not this is a correct
diagram of what the place looked like to her at
the time she was there. I want her merely to illus-
trate the testimony by this diagram.

The Court: The Court will sustain the objec-
tion.

Mr. Young: I guess we will have to draw one,
then.

The Court: I suggest a smaller piece of paper.

Mr. Young: I will question the witness further.

Q. Now, Miss Rodgers, are you sufficiently ac-
quainted with the locality where ‘““Speed’’ Warren
lived at this time to place it on a plat or map?

A. Yes.

Q. In relation to the various streets in Wa-
hiawa ? Ae ihumk 1 ‘ean.

Q. Will you step down to this board a moment,
please? (The witness responds as directed) This

94 Ilene Warren vs.

(‘Testimony of Lou Rodgers.)

is a plat in evidence. Prosecution’s Exhibit ‘‘A’’
(indicating on board). This is Kuahiwi Street (in-
dicating), Avacado Avenue, the court house there,
the railroad down here, this is Muliwai Avenue
(indicating). Now, having those land marks in
mind and knowing the names, can you point out
about the place where ‘‘Speed’’ Warren’s house
Was on the date you were testifying to?

A. It was on this street up that way (indi-
cating).

Q. In this approximate area. Can you say which
lot it was on?

A. Where should the house be?

Q. All we are interested in is if you can point
out where ‘‘Speed’’ Warren’s house was.

A. Yes. [54]

©. Will you point to it, please?

A. This place here (indicating on Ex. FA’),

Mr. Young: May the record show the witness
indicates the lot marked ‘‘Marvin Connell’’?

The Court: The record may so show.

By Mr. Young:

@. And it was in the house on the lot that you
pointed to where you lived with ‘Speed’? Warren
and the other girls that you testified to, is that cor-
rect ? A. Yes.

©. Where did you live in the house?

A. When I first came, I lived downstairs, then
I moved upstairs.

Q. Was there a maid there? A. Yes.

The Territory of Hawai 95

(Testimony of Lou Rodgers.)
What was her name?
A Japanese lady.
Was there any other maid there?
‘Yes.
What was her name?
Lucy McGuire.
Would you know that person again if you
saw her again? A. Yes.
My. Young: (To the bailiff) Call Lucy Mec-
Guire.
(The bailiff complies by bringing a lady into
the court-room. )

OPoPore

Q. Did you see this lady (indicating same per-
son) ? A. Yes.

Q. What is her name? [55]

A. Lucey McGuire.

Q. Is this the maid that you testified to?

A. Yes.

Mr. Young: (To the same person) What 1s
your name? A. Lucy McGuire.

Mr. Young: May the record show the identifi-
eation of Lucy McGuire?

The Court: Let the record so show.
By Mr. Young:

Q. You say you first lived downstairs. Where
did you live afterwards? A. Upstairs.

Q. Where did the other girls stay? |

A. Downstairs.

Q. Do you know what those other girls were
doing there? i» Wes:

96 Ilene Warren vs.

(Testimony of Lou Rodgers. )

Q. What were they doing?

A. Having soldiers visit them.

@. Soldiers visiting them. Pardon me just a
moment. Did you ever have any soldiers visit you?

Mr. Dwight: May it please the Court, may the
witness be instructed as to her constitutional rights?

The Court: The witness has already been in-
structed as to her constitutional rights. You do
not have to answer any question if it will incrimi-
nate you. You may answer the question.

A. Yes, I had friends.

By Mr. Young:

@. Do you know where ‘‘Speed’’ Warren got
this wire and copper plate that you have testified
to? Do you know that [56] of your own knowl-
edge ?

A. I can’t recall where she got the wire. She
got the copper plate from the Hawaiian Steel Iron
Works.

@. Were you with them at the time?

A. Yes.

@. Did you know what she was buying it for?
A. Yes.

Q. She told you that? A. Yes.

Q. If you saw a picture of ‘‘Speed’’ Warren’s

house, would you know whether that was the house
or not? A. Yes.

@. I am going to show you some pictures here
(handing pictures to the witness). Look at this

The Territory of Hawaun 97

(Testimony of Lou Rodgers.)
picture (indicating). Tell me whether or not you
know what that is.
A. (Examining same) That is leading into the
front door.
Q. Of what?
A. Of ‘‘Speed’’? Warren’s house.
Q. Is that the way it looked to you at the time
you lived there? A. Yes.
Q. That is just the way it looked to you?
A. lt dad.
Q. From that view? A. Yes.
Mr. Young: May this be received in evidence?
The Court: Any objection?
Mr. Dwight: Subjqect to my general objection
and exception as to all this witness’ testimony. [57]
The Court: Prosecution’s Exhibit ‘‘D” in evi-
dence.
(The picture referred to was received in
evidence and marked ‘‘Prosecution’s Ex-
hibit D’’.)

By Mr. Young:

@. I will show you another picture (handing
same to the witness). Do you know what that is?
(Examining the same) Yes.

What is that? A. Road.

What street is that?

I do know but I can’t pronounce it.
Which one is it on the map (Ex. ‘‘A’’)?
Muliwai.

Is ‘‘Speed’’ Warren’s home in that picture?
Yes.

POPoPooer

98 Ilene Warren vs.

(Testimony of Lou Rodgers.)
Q. Will you point to it?
A. (The witness indicates. )
Q. Is that the way it looked to you at the time
you lived there? A. Yes, from a distance.
Mr. Young: May this be received in evidence, if
your Honor please?
The Court: It may be received in evidence and
marked ‘‘Prosecution’s Exhibit E’’ in evidence.
(The picture referred to was received in
evidence and marked ‘‘Prosecution’s Ex-
inplomy leh a |
By Mr. Young:
Q. And, similarly, this picture (handing same
to the witness) ; do you know what that is? [58]
A. (Examining the same) Yes.
@. What is that?
A. That is a picture of ‘‘Speed’’ Warren’s home
and garage.
Q. Did it look that way at the time you lived
there ? A. Yes.
Q. I will show you another picture (handing
same to the witness). Do you know what that is?
A. (Examining the same) Yes.
Q. What is that?
A. That is ‘‘Speed’’ Warren’s home—yard,
rather.
Q. It looked that way at the time you were
there, living there? A. Yes.
Mr. Young: May these two also be received in
evidence ?

The Territory of Hawai 99

(Testimony of Lou Rodgers.)
The Court: They may be received in evidence as
Exhibits ‘‘F’’ and ‘'G”’.
(The pictures referred to were received in
evidence and marked ‘‘Prosecution’s Ex-
hibit F’’ and ‘‘Prosecution’s Exhibit G’’,
respectively. )

By Mr. Young:

Q. I am going to show you another picture
(handing same to the witness). Have you ever
seen that before?

A. (Examining the same) Yes.

Q. Do you know what that 1s?

Mr. Dwight: Just a moment. I am going to
object as incompetent, irrelevant and immaterial—
counsel has already exhibited the picture to me—
upon the ground, if the Court will examine i, UaeNe
[59] it is incompetent in this particular case. It
is a photograph of something that has been sup-
pressed.

Mr. Young: This, if your Honor please, 1s some-
thing that this witness can testify to, whether this
was the condition existing when she was there.

Mr. Dwight: It is attempting to get into evl-
dence indirectly what they cannot do directly. I
think the Court better look at that photograph.

The Court: JI will have to reserve my ruling on
that until I ascertain who took it, when and how.

Mr. Young: May this be marked for identifica-
tion ?

100 Ilene Warren vs.

(Testimony of Lou Rodgers.)
The Court: It may be marked for identification.
It may be marked Exhibit H for identification.
(The picture referred to was marked ‘‘Prose-
cution’s Exhibit H for identification’’.)

Mr. Young: It will not be exposed to the jury.
I would like to have her say what it is.

The Court: It is for identification only at this
time.

By Mr. Young:

Q. Do you know what this is? A. Yes.

Q. What is it?

A. ‘Speed’? Warren’s front door.

@. Is that the way ‘‘Speed’? Warren’s front
door looked at the time you lived there after she
had the conversation with Kiehm and after she
had the conversation with Mr. Dwight? [60]

A. It looks similar, although the brass looks a
little bit higher up.

Mr. Dwight: I am going to move to strike all
this testimony as highly prejudicial. The document
has been identified. He is trying to get the sub-
stance of the picture in by means of questions and
answers. I submit that it is entirely incompetent,
irrelevant and immaterial.

The Court: The Court will strike that answer
with reference to the highness or lowness of the
door,—any description of how the exhibit looked,
—and the jury instructed to disregard it until the
matter is received in evidence.

The Territory of Hawa 101

(Testimony of Lou Rodgers. )
By Mr. Young:

Q. Did you see any one put anything on that
front door?

A. J don’t know what you mean.

Q. You testified she got certain wire and a plate
and John Kiehm came over there and did some work
over there. Did you see John Kiehm do any work
on that door?

A. I don’t know whether it was him or another.

Q. Was something put on that door after you
heard the conversation between Mr. Dwight and
Mr. Kiehm? A. Yes.

Q. What was put on that door?

A. Sheet iron, brass. I don’t know whether it
was brass or sheet iron. I know when I see it.

Q. Was that put on the outside or inside ?

A. Outside.

Q. Do you know of your own knowledge whether
anv electrical wires were attached to that door?

[61]

Ne NicS.

Q. Now can you sketch just briefly, if you can,
from your recollection what that’ door looked like
as you come in from the outside, about what size
that sheet was?

A. Well, it is about the width of this table. sas
dicating reporter’s table)

Q. About the width of that table?

A. Maybe not as wide.

Q. Maybe not as wide, and about how long?

102 Ilene Warren vs.

(‘Testimony of Lou Rodgers.)

A. About the length of that size, just enough to
fit the door.

Q. Just enough to fit the door, did it reach all up
and down the door? A. No.

@. About how far from the bottom did it stop,
or was it on the bottom of the door?

A. It was lacking about a foot from the top,
then on down.

Q. About a foot from the top, about a foot of
space left, then right on down to the bottom of the
door? ,

A. So a person could see out of the top of the
door.

Q. Now, to your knowledge, did ‘‘Speed’’ War-
ren ever put the current through that plate?

A. Yes.

@. And how did she do that, by doing what?

A. Turning on the switch.

Q. And where was that switch located ?

A. On the right hand side of the stairway going
up, of the front room.

@. As you come in the front door to the right
hand side, [62] is that right? A. Yes.

@. How far up the stairs, how far up, going
towards upstairs was this switch located ?

A. About the height of three steps.

Q. Height of what?

A. Height of three steps going up.

@. Where was the switch attached, what part of
the house was it attached to?

The Territory of Hawan 103

(Testimony of Lou Rodgers.)

A. On the side of the door casing.

Q. On the side of the door casing going up-
stairs, is that correct? em Vés.

Mr. Young: There is only about five minutes
left. I would like the jury to see these exhibits for
the remaining time, if I may show these. Showing
the jury, for the purpose of the record, the exhibits
marked ‘““D’”’, ‘Hh’, “PF” and “‘G’’, you gentlemen
please look at those.

(Mr. Young handed the pictures, Prosecu-
omen sD?, “He, “HR” and “G”, to
the jury.)

Mr. Young: May this witness be excused for the
day? I don’t believe we have time to question her
further. May this witness be excused from the stand
and instructed to return?

The Court: Miss Rodgers, you will be excused
from the stand and you are instructed to return to-
morrow morning at 9:00 o’clock.

Mr. Young: May we have our 4:00 o’clock re-
cess? [63]

The Court: Yes. There will be no afternoon ses-
sion tomorrow. We have a rather long calendar.

Mr. Young: I have some witnesses, 1f your
Honor will order them to return.

The Court: Bring them in. |

Mr. Young: If the Court please, will the Court
instruct Lucey McGuire and Mr. John Kiehm to
return tomorrow morning at nine o’clock without

104 Ilene Warren vs.

(Testimony of Lou Rodgers.)
further order of the Court. (Both witnesses were in
the court-room. )

The Court: You two will return tomorrow morn-
ing at nine o’clock without further order of the
Court. You are subpoenaed to return here to-
morrow morning at nine o’clock. You will return
here without fail. The Court will announce for the
benefit of counsel and the jury we will adjourn
until tomorrow morning at nine. There will be no
session at all tomorrow afternoon, nor Saturday.
You gentlemen of the jury are instructed not to
discuss this case with any outside person or with
anyone during the recess and adjournment of the
Court and not to read the newspapers or any papers
or anything whatsoever about this case. If anyone
tries to approach you, let the Court know about it.
You gentlemen are excused until tomorrow morning
at nine o’clock. Court stands adjourned until that
time.

(A recess was taken until Friday, February
4, 1932, at nine o’clock a.m.) [64]

Honolulu, T. H., Feb. 4, 1938.
(The trial was resumed.)

Mr. Young: Ready for the Territory.

Mr. Dwight: Ready for the defendant.

Mr. Young: Stipulate the jury and the defend-
ant are present.

The Territory of Hawau 105

(Testimony of Lou Rodgers. )

The Court: Let the record show it is stipulated
the jury and the defendant are present and both
sides are ready to proceed.

Mr. Young: Your Honor, may I have the as-
sistance of the bailiff of the Court to tack this up.
(Referring to a large sheet of paper.)

The Court: Yes, call the bailiff.

LOU RODGERS,

a witness called on behalf of the plaintiff, resumed
the stand and testified further as follows:

Direct Examination

(continued )
By Mr. Young:

Q. Miss Rodgers, do you think you could draw
this diagram better on a flat table or on the board ?

A. Flat table.

Q. Step down here, please. Miss Rodgers, I
want you to please draw a diagram as near as you
can from your memory as to the general plan of the
floor, bottom floor, of the home of Ilene “Speed”’
Warren at the time that you were there. You un-
derstand what I want? Here’s a ruler and pencil.
(The witness stepped down to the prosecutor’s table
and Mr. Young handed her a ruler and pencil.)
Take your time and draw. May I suggest that you
make the house about as square as this ruler so it
[65] will be large enough for the jury to see, the
general plan of the house, about this long, to scale?

(The witness draws on a piece of paper and
resumed the stand.)

106 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. Miss Rodgers, will you please step down here
just a moment? You have drawn a rough plan on
this paper.

(The witness steps down to the prosecutor’s
table.)

Mr. Young: May we mark this, if your Honor
please? What is the next letter?

The Court. “3b

Mr. Young: Prosecution’s Exhibit ‘‘I’’ for iden-
tification ?

The Court: All right, it may be marked ‘Ex-
hibit I for identification.’’

(The drawing referred to was marked
‘‘Prosecution’s Exhibit I for identification.’’)

By Mr. Young:

Q. Pointing to Exhibit ‘‘I’’ for identification,
Miss Rodgers, will you kindly explain what this
represents ? A. The home of Mrs. Warren.

@. Now, you have various lines drawn through
there, what do those represent ?

A. Partitions.

Q. In other words, do I understand this is a
room, this square here (indicating) ? A. Yes.

Q. What room is this?

A. The living-room downstairs.

Q. Living-room downstairs. Now, with reference
to this large diagram, which part of this house
faces [66] Muliwai Avenue?

A. This side (indicating).

The Territory of Hawa 107

(‘Testimony of Lou Rodgers. )

Q. This side, and which side of the house is the
front door on? A. The same side.

Q. The same side, up here (indicating), is that
correct? May we mark this ‘‘X-1’’, the general
direction? (Marking on paper.) The front door 1s
where? Will you point where on the diagram?

A. Approximately there.

Q. Approximately there. Now, as you come iin
the front door,—I believe you testified that this 1s

a two-story building ? A. Yes.
Q. As you come in the front door, are there any
steps leading to upstairs? A. Yes.

Q. Now, where are these steps located? Will
you point them out?

A. This is the front going up the front stairs
(indicating) and this is going up the back stairs
(indicating ).

Q. Going in the front door and the stairs are on
your right going upstairs? A. Yes.

Q. How far, approximately, is it, Miss Rod-
gers, from the door to the beginning of the steps
going up on the righthand side, just roughly, how
many feet? A. Well, I couldn’t say.

Q. Will you point out an object in here, some-
thing to show us how far it is from the front door
as you come [67] in to the first step on the right-
hand side? A. Step and a half. |

Q. What do you mean by a ‘step and a ney’ ”,
the steps you take with your feet?

A. The steps you take with your feet.

108 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. Will you point out some object on the floor
just about how far it is from the door as you come
in to the first step ?

A. From my foot to there (indicating).

Q. About two feet from the door here to the
first step, is that correct, approximately ?

A. Yes.

Q. Now, with reference to this (indicating), are
these stair marks that you have in your diagram,
with reference to this (indicating), how are they
situated with reference to the front door? Are
they just ahead of the front door?

A. Just ahead of the front door.

@. If you turn to the right, you can take these
steps going upstairs also, is that correct?

A, Yes,

@. Where do these steps lead upstairs?

A. To the kitchen.

() Where do these steps lead to going this direc-
tion to the right (indicating) ?

A. Front living-room upstairs.

Q. Front living-room upstairs. Now, yesterday
you gave some testimony about a certain switch
that was on the right stairway. Will you indicate
with a cross about where that switch is located?

Mr. Dwight: May it be understood my objec-
[68] tion goes to this testimony today ag well as
yesterday and save my exception?

The Court: Yes.

The Territory of Hawai 109

(Testimony of Lou Rodgers. )

By Mr. Young:
Q. Put a cross about where that switch is lo-
cated. A. (The witness marks on paper).

Q. That cross there represents the switch, and
approximately how far would that switch be from
the door as you come in on the righthand side; as
you come in the door, how far would that switch
be to your right?

A. Well, I couldn’t say.

Q. We just want a rough idea. We want a
rough idea. Can you point out some object, indi-
cating the distance ?

A. About this height (indicating).

Q. About that height off the floor?

The Court: Indicating what?

Mr. Dwight: Let us have that measure.

The Court: Indicating what?

Mr. Young: The top of the post (of the Jury
ox. )

Mr. Dwight: About four feet.

Mr. Young: I suppose about four feet.

The Court: Stipulated about four feet to the top
of the rail, top of the post of the jury rail.

By Mr. Young:
G. And about how far going to your maieht, hie
distance ? A. Not very far.

Q. What to you mean by “‘not very far’’?

A. About half a room length.

Q. That is, standing in the door, could you
reach the [69] switch? A. Yes.

110 Ilene Warren vs.

(Testimony of Lou Rodgers.)
Q. Standing in the front door, you could reach
the switch, reaching out that way (demonstrating) ?

A. Yes.

Q. That is to your best recollection?

A. Yes.

Q. Now, what, briefly, are these rooms you have
here? (Indicating) A. Bedrooms.

(). Bedrooms, downstairs bedrooms?

A. Yes.

@. How many of them were there?

A. Four.

Q. What does this represent here (indicating) ?

Mr. Dwight: Will you indicate the line drawn

between the foot of the front steps back? I mean
this line here (indicating).
A. It doesn’t represent anything.

By Mr. Young:

@. What does this space here represent between
this door and the stairway here (indicating) ? This
is the stairway (indicating). You had a door marked
over here (indicating). What does this space repre-
sent (indicating) ?

A. Well, it don’t represent anything. There is
not anything there.

q. What do you mean,—it is not a room, it is
a hallway or what?

A. There isn’t anything there.

Q. Now, can you go directly from the front door
into [70] the living-room? A. Yes.

The Territory of Hawai 111

(Testimony of Lou Rodgers. )

Q. Is there any door between the living-room
and the front door? As Wes

Q. You have a door marked on there (indicat-
ing). Is that about where the door is? A. Yes.

Q. Now, you testified yesterday, Miss Rodgers,
that there was some electrical equipment in some
other room. Do you know where that was with
reference to this diagram?

A. Over this door here (indicating).

Q. Over this door here. May we mark this
“X27? (Marking on diagram) That is where there
was some other electrical equipment? Ae Wes:

Q. Over that door. Now, you said yesterday that
the wires ran to the front door and the back door.
Was that not your testimony ? A. Yes.

Q. Where was the back door located that you
are talking about?

A. About here (indicating on diagram).

Q. Down about here, the back door?

A. Yes.

Q. And this is the front door that you were
talking about also? Ay Wes.

Q. You know of your own personal knowledge
there were wires leading to that door? [71]

A. Yes.

Q. Now, were there any windows upstairs on
the second floor in about this vicinity, indicating
the top of the stairs on the righthand side, for the
purpose of the record ? A. One.

112 Ilene Warren vs.

(Testimony of Lou Rodgers.)

@. Do you know whether or not you could see
from that window down, if you were up there look-
ing down, outside the front door? Do you recall?

ee 4c:

Q. You could? A. Yes.

Mr. Young: I think that is all. Take the stand,
please. (The witness resumes the witness stand.)

Q. Now, you gave certain testimony yesterday
about overhearing a conversation between Mr.
Dwight and the defendant in this ease. Approxi-
mately how long was that after the police took you
from that home about June 1st or the 2nd of June?

A. About a week; maybe two days.

Q. About a week? A. Yes.
@. You are absolutely sure of that conversation
that you testified to? A. Yes.

@. And that took place in his office?

A. Yes.

Q. Now, after the electrical equipment was put
in by Kiehm, was there ever a change made in that,
that you know of? Did Kiehm ever come around
and do anything about it? [72] A. Yes.

@. What did he do the second time he came?

A. He fixed the transformer.

Q. He fixed the transformer. Where was the
transformer located, Miss Rodgers?

A. On top of the door leading into the livine-
room downstainrs.

The Territory of Hawai 113

(Testimony of Lou Rodgers.)
Q. Is that the place I marked “Kear oumithe
diagram ? A. Yes.

Q. That was above the door? A. Yes.
Q. And do you remember what that transformer
looked like? A. Yes.

Q. Can you describe it to us from your memory ?

A. It was a black frame, like a box.

Q. About how big was it? Will you step down to
the board, if you can draw about the size of that
transformer with a pencil on the board, to your best
memory? Just draw a square, whatever shape at
was, about the size it was.

A. (The witness steps,down to the board and
draws on paper.)

Mr. Young: May we mark this square ‘‘trans-
former’’, your Honor? (Marking)

The Court: Yes, you may.

By Mr. Young:

Q. You say he fixed this transformer the second
time he came back?

A. Not that one, but he had a small one there
at first. [73]

Q. He had a small one in at first ¢ A. Yes.
Q. Do you know what kind of a transformer
that was? A. No, I don’t.

Q. When he came back he did something with
this large transformer, is that correct?

A Wes:

Q. Did ‘‘Speed’’ Warren ever tell you not to
touch that switch ?

114 Ilene Warren vs.

(Testimony of Lou Rodgers. )

Mr. Dwight: I am going to object upon the
ground the question is leading.

Mr. Young: I will withdraw that question. No
further questions.

The Court: Question withdrawn. May I ask just
one question ?

By the Court:

@. You have drawn that transformer. Is that the
size? What are the dimensions? It is square. How
many feet or inches long or wide?

A. I imagine it is about six inches long, about
214 inches wide.

Q. Six inches long and 214 inches wide?

A. Yes.

Mr. Dwight: Are you through ?

Mr. Young: Yes, I am all through.

Cross Examination
By Mr. Dwight:
@. Miss Rodgers, yesterday shortly after you
took the stand we had a recess. Do you recall that?

[74]
A. Yes.
Q. And you were taken into another court-room
by Mr. Jardine? A. Iwas.

Q. Did you talk about your testimony that you
were to give in this case at that time?

A. Yes.

Q. Did he tell you what to testify to?

A. No.

The Territory of Hawai a5

(Testimony of Lou Rodgers.)

Q. What was the nature of the conversation ?

A. Because I made a mistake.

Q. He told you that you had made a mistake ?

A. No.

Q. Well, what did he say? Will you speak out
so the jury can hear you?

A. Well, it was about those two girls that hap-
pened to be living in the same place that I was.

Q. What is that again?

A. It was about those two girls that happened
to be living in the same place that I was.

Q. Is that what he said to you?

A. No, he just asked me to tell the truth about

lke
Q. He just asked you to tell the truth about it?
A. Yes.
Q. And did he tell you that you were not telling
the truth on the stand? A. No, he did not.

Q. Did he give you any reason for telling you
to tell the truth?

A. I don’t understand you. [75]

Q. Why did he tell you to tell the truth ?

Mr. Young: I object to this as calling for a con-
clusion of the witness and hearsay. I object to this
as calling for hearsay testimony, calling for a con-
clusion of this witness as to what took eae in
somebody else’s mind.

Mr. Dwight: May it please the Court, this is
cross-examination.

116 Ilene Warren vs.

(Testimony of Lou Rodgers.)

The Court: The Court will sustain the objection
as to the form of that question, as to why he asked
those questions.

By Mr. Dwight:

Q. What did Mr. Jardine say, his very words?

A. Who is Mr. Jardine?

Q. This gentleman who took you (indicating Mr.
Jardine. )

A. He wasn’t the only one took me there.

Q. He wasn’t the one one took you there. Mr.
Young took you there, too? A. Yes.

Q. What did Mr. Young say to you, if anything?

A. He said to go—to testify as to what I was
supposed to.

Q. Is that what he said to you, go ahead and
testify to what you are supposed to testify to? Is
that what he said ?

A. Well, he wanted to know if someone was
talking to me. He wanted to know what I was try-
ing to do, double cross him, I said no.

Q. What else? [76]

A. Nothing.

Q. Speak out loud so that I can get your an-
swers down as well as the Court Reporter. What
else did he say to you? A. That is all.

Q. That is all. He asked you if you were double-
crossing him?

A. Not exactly. He said, ‘‘What are you doing,
trying to double-cross?”’

The Territory of Hawaw 117

(Testimony of Lou Rodgers.)
Q. Did he offer you any immunity for testify-

ing A. I don’t understand what you mean.
Q. Did he tell you if you testify here and in-

eriminate yourself, he would not prosecute you?
A. No, he did not.
Q. Did Mr. Jardine make that statement to you?
a INO:

Q. That is all that happened?

A. That is all that happened.

Q. How long were you in that room ?

A. Possibly about a second.

© |

You mean in the judge’s chambers, about a
second ? A. About that time.
Q. You recall my pushing on the door and the
conversation ceasing ? A. No.
Q. You don’t? A. No.
Q. Now, Miss Rodgers, you say you have known
“Speed”? for four years? A. Yes. [77]

Q. And how long did you live with ‘‘Speed’’?

A. Two years, outside of two months and a half,
taking a trip to the States.
When did you go to the States?

A. March the 16th.

Q. March 16 of what year?
A. 1935, 1936—wait—1936.
Q
O

&

_ March 16 of 1936. Were you in my office prior
to that time of your departure for the Coast ?
A. Yes, Il was.
Q. And do you recall the nature of your visit?
A. Yes.

118 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. That was in connection with an accident,
wasn’t 1? A. Yes.

Q. That is all that happened, I prepared a suit
for you and you signed it? A. I did.
And what time of the year was that?
The first one was in October.
When did you first come in?
In where?
In my office.
All I can recall was about that accident.
And what month was that?
If I am not mistaken, it was October.
Of what year?
Well, it is before I left for the States.
Aren’t you a little bit mixed up on that, Miss
Rodgers? [78]

A. Well, I can’t say offhand.

@. You had an accident on October 27, did you
not?

A. I could not say the date; I know it was
October.

Q. You were confined in the hospital for some
period of time, were you not? A. Yes.

Q. After you were discharged from the hospital
you came to me to bring suit. Do you recall that?

A. I did.

Q. Now, does that refresh your memory as to
when you came into my office ?

A. Well, that is all I can think, about then.

OPOorPoerPorore

The Territory of Hawaii 119

(Testimony of Lou Rodgers. )

Q. Was it about December 16, 1935, that you
first came into my office im company with a Jap-
anese boy, who was a so-called witness to this acci-
dent ?

A. I didn’t go in the office with him.

Q. You didn’t; and at that time did Mrs. War-
ren accompany you? A. Well, I don’t recall.

Q. You don’t recall. Shortly thereafter you
signed a bill of complaint, didn’t you?

A. Yes, sir.

Q. Then you went away ? A. I did.

Q. You signed the bill of complaint on the 20th
of December in my office?

A. I don’t recall that.

Q. Did you ever come into my office after you
signed that bill of complaint ?

A. JI don’t remember. I have been up there sev-
eral [79] times but never did see you.

Q. You never saw me?

A. Thave been there lots of times, you were busy
or out.

Q. I am speaking of the times when you came
in and had conversations with me after you signed
the suit on the 20th of December. Did you ever
come back into my office again? That is the 20th
of December, 1935?

A. Well, offhand speaking, LT don’t remember.

Q. You recall, however, being arrested or taken
to the police station by police officers around the
first of June? A. Of what year?

120 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. Of 1936. I will withdraw that question. You
say you left on March 16 and went to the Coast?

A. Yes.

@. When did you return to Honolulu 2

A. On the 22nd of May.

@. On the 22nd of May, and when did Mr.
Parker, the police officer, take you to the police
station ? A. The second of June.

Q. The second of June, and you say you re-
mained at the police station on the 2nd of June?

A. Yes, overnight.

Q. Overnight. Did you see me at all on the 2nd

of June or the 3rd of June? A. Yes.
Q. Where? A. At the police station.
Q. At the police station? [80] A. Yes.
@. You are sure about that? A. Yes.
@. You know who bailed you out?
A. No, I don’t.
Mr. Young: If your Honor please, I think we

have gone a little too far afield. It is incompetent,
irrelevant and immaterial who bailed her out.
The Court: Objection overruled.

By Mr. Dwight:

Q. You know who bailed you out?

AND AL Cle inet.

Q. After you were discharged from the police
station did you ever come into my office?

A. Yes.

Q. When was it?

The Territory of Hawai EP

(Testimony of Lou Rodgers.)

A. I don’t recall what date or how many days
later.

Q. Did you come in with anyone?

A. Ilene Warren.

Q. And that was the first time you came into
my office after your arrest on June Ist or June 2nd,
isn’t that correct ?

A. I don’t know what you mean.

Q. That is the first time you came into my office
after you were arrested or taken to the police sta-
tion on either June Ist or June 2nd? Tee NO:

Q. When did you come into my office before
that? A. When the accident happened. [81]

Q. I am not talking about the accident. I am
talking about the time after June 1st when you
came in. It was on June 4th, was it not?

A. J can’t recall what time it was.

Q. And what was the nature of your WS, vera 4

A. Well, if I am not mistaken it was for bail
money.

Q. Concerning your bail? A. Yes.

Q. That is correct. Was there any conversation
at that time about the case or was it just concern-
ing the bail?

A. Well, I don’t remember.

Q. Did you come in again concerning this par-
ticular case that you were involved in?

A. Well, I can’t say that either because L don’t
remember.

Q. You don’t remember? A. No.

122 Ilene Warren vs.

(Testimony of Lou Rodgers. )

Q. When did you come into my office and have
this conversation with me that you testified to on
direct examination ?

Mr. Young: ‘There is no evidence that she had
a conversation.

By Mr. Dwight:

Q. When Mrs. Warren had a conversation with
me when you were present ?

A. Conversation about what?

@. You remember testifying on direct examina-
tion about a conversation Mrs. Warren had with
me in my office ? A. Yes, I did. [82]

Q. When did that occur?

A. Well, I can’t say whether it was two days
after the arrest or a week but it was a conversation.

Q. Now, you have testified about what happened
two days after your arrest that was concerning the
bail money; now you said you came into my office
again; do you know what date you came in?

A. No, I don’t.

Q. Maybe I will refresh your memory. Do you
remember when the case was set in the Wahiawa
court for trial, what date?

A. I know it was on Friday; I don’t know what
date.

Q. That was the 9th. Your case was originally
set for the 9th, wasn’t it?

A. Well, I don’t know what date Friday came
on.

The Territory of Hawai 123

(Testimony of Lou Rodgers.)

Q. And were you in my office the day preceding
the date the case was set for trial?

A. Would you mind asking me that question
again.

Q. Were you in my office on the day preceding
the date, the day before the date that the case was
set for trial in the Wahiawa court?

A. I think I was. :

Q. And was anyone else with you?

A. Mrs. Warren.

Q. Or were you alone?

A. Mrs. Warren was with me.

Q. Mrs. Warren was with you, and did you talk
to me on that date?

A. Well, I didn’t talk to you—she did—any
more than to say good morning. [83]

Q. Did you say anything to me on that date?

A. She did all the talking; that I can remember.

Q. You never gave me the facts in the case on
that day? A. What facts?

Q. Your participation in this incident that
brought about your arrest. You were the only one
involved in it, isn’t that correct?

A. Yes, I was.

Q. Mrs. Warren wasn’t involved in that inci-
dent, isn’t that correct ?

Mr. Young: I object to that as meompetent,
irrelevant and immaterial, not proper cross-exami-
nation. Lf counsel wants me to go into that incident,
IT submit

124 Ilene Warren vs.

(Testimony of Lou Rodgers.)
The Court: You have your redirect. Objection
overruled.

By Mr. Dwight:

Q. Will you answer the question ?

A. Well, as I say she did most of the talking of
what happened at that time.

Q. Isn’t it a fact, Miss Rodgers, that you were
the one that was involved in the matter ?

A. Well, even if I was, she was the one did all
the talking.

Q. Please answer my question yes or no; is that
correct ? A. Yes.

Q. And did you not on that occasion tell me
what you did on that occasion in connection with
that incident ?

A. I might have; I don’t know. [84]

Q. You don’t remember? A. No.

Q. Andisn’titafact, Miss Rodgers, that the other
two girls were not involved in this particular inci-
dent that you were taken to the police station for?

A. They were taken to the police station the
same time I was.

Q. They were not involved in it at all; it was
you involved in the incident, isn’t that fact cor-
rect ? A. Yes.

@. And you don’t recall telling me the story of
your participation in this incident?

A. No, I don’t.

-Q. You don’t? A. No.

The Territory of Hawai 125

(Testimony of Lou Rodgers. )

Q. Now, was that the time that this conversation
that you talk about, this alleged conversation, took
place? A. What conversation ?

Q. That you told Mr. Young about Mrs. Warren
talking to me about barricading the house against
robbers and soldiers.

A. Yes, I did not say it was that day I went up
to pay my bail money; it was right afterward.

Q. Was it the day I am talking about when you
gave me the facts concerning your participation in
this case? A. No, it was not.

Q. Were you ever in my office any time after
the 8th of June, 1936? A. Yes. [85]

Q. When?

A. I didn’t say when, how many days after, but
it was shortly after the arrest.

Q. Shortly after the arrest?

A. After the trial was over.

Q. I might refresh your memory. You were in
my office after June 8th. A. Yes.

Q. And that was on the 11th of September,
1936? A. No.

Q. You deny that? A. Ido.

Q. You were in my office on one occasion after
June 8th, isn’t that correct? A. Yes.

Q. And that was in September? A. No.

Q. On the 11th of September, 1936?
A. I might have paid you a visit but you weren’t
in. i

126 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. You spoke to me on that oceasion ?

A. I don’t recall.

Q. You don’t recall. And that was the last time
you were in my office, isn’t that correct?

A. Well, I have been in your office but you were
not 1n.

Q. I am only referring to instances when you
came in and conferred with me; that is all. I am
not talking about instances when you might have
been in my office and I wasn’t in.

I don’t remember of being there.

When did you leave Mrs. Warren’s home?
[86]

Fourth of August.

Fourth of August of what year?

1936.

Are you sure about that?

Well, as near as my recollection, it was.

Is that just a guess? A. No.

Now, Miss Rodgers, after you left Mrs. War-

ren, where did you go?

A. I stayed in Wahiawa.

Q. Stayed in Wahiawa. Where did you live?

A. Several places.

Q. Subsequent to leaving Mrs. Warren’s home
and establishing a place in Wahiawa, were you ever

OOPOPoPr OF

convicted of a crime? A. Yes.
@. That crime was prostitution? A. Yes.
@. Running a disorderly house? A. Yes.

Q. How many times were you convicted?

The Territory of Hawau 1

(Testimony of Lou Rodgers.)

A. Twice.

Q. Twice. You are a registered prostitute, are
you not, for the police department?

Mr. Young: I object to that as incompetent, ir-
relevant and immaterial. Your Honor, counsel has
no right to go into this matter. It has not been
brought out about registered prostitutes.

Mr. Dwight: I submit the question. I submit it
is proper cross-examination. [87]

The Court: Objection overruled. Answer the

question.

By Mr. Dwight:

Q. Will you answer the question ? A. Yes.

Q. And you are operating a house of prostitu-
tion in Wahiawa, isn’t that correct? A. Yes.

Q. Now, Miss Rodgers, you testified on direct
examination that this apparatus was—that you and
Mrs. Warren had a conversation concerning the
installation of some apparatus to protect you
against robbers, drunken soldiers and police officers.
Yes and no, that was your answer?

A. That was.

Q. Now, when did that conversation take place?
A. Well, first at home.

Q. When? A. I don’t remember when.
Q. Can you give us some date? A. No.

Q. Was it after the time you were taken to the

police station on the first or second of June?
A. It was.

128 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Or before? A. It was after.
It was after, and had you been robbed ?
I was.

On how many occasions ?

Once in her house.

Once in her house, and did you report it to
the [88] police ? A. Yes, sir.

Q. Did they do anything about it and catch the
burglar ?

A. They came up and took finger prints and
didn’t do anything else.

Q. Thev took finger prints and didn’t ‘a any-
thing else, and that robbery took place before you
had your conversation with Mrs. Warren about in-
stallation of an apparatus? A. It was.

@. Had you been bothered by drunken soldiers?

A. Yes.

Q. On numerous occasions? A. Yes.

@. Did the police ever assist you in quelling the
disturbances ?

A. The police at Wahiawa did that.

@. Did they ever come down and put a stop to
the disturbances from the drunken soldiers?

A. The MP’s did.

Q. You didn’t get any help, you couldn’t get any
help from the Wahiawa police? Please answer my
question yes or no.

A. You could, if you called for them.

Q. Did you call for them? ele dicienots

Q. Did Mrs. Warren call for them?

OrPoroe

The Territory of Hawa 129

(Testimony of Lou Rodgers. )

A. Called for the MP’s.

Q. How many times have you been disturbed by
[89] drunken soldiers down there?

A. Well, numerous times.

Q. Speak a little louder, please.

A. Numerous times.

Q. Numerous times. This all transpired o1 oc-
curred before your conversation with Mrs. Warren?

A. Did what?

Q. The bothering of your quiet and peace by
dvunken soldiers occurred before you talked to Mrs.

Warren? A. About what?
Q. About the installation of equipment.
A. Yes.

Q. And up to the time that you and Mrs. War-
ren spoke of this installation you were the only one
that was ever involved in any incident with the
police, isn’t that correct ?

A. Idon’t know what you mean.

Mr. Dwight: I will ask the Reporter to read
the question.

(The last question was read.)

A. During the time that I was there?

Q. Yes, during the time that you were there.
Now, what did you mean, Miss Rodgers, by your
answer on direct examination when counsel, when
Mr. Young asked you, ‘‘And this apparatus was to
keep the police out?’’ and your answel was, ‘Yes
and no’’?? Now, what did you mean by that,—yes
for you and no for Mrs. Warren?

130 llene Warren vs.

(Testimony of Lou Rodgers. )

A. Well, it wasn’t exactly meant for either one,
yes and no. It was mostly for her protection, for her
own building and house. It wasn’t for me. [90]

Q. And you were the only one ever involved with
the police?

A. I just happened to be the unfortunate one.

Q. Now, after having gone over this agreement
for some time, now can you tell me when you had
your first conversation with Mrs. Warren concern-
ing the installation of electrical equipment ?

A. Well, it was after June 2nd.

@. It was after June 2nd? A. Yes.

@. How many days? A. I don’t know.

Q. Now, what did you say to Mrs. Warren and
what did Mrs. Warren say to you?

A. She wanted to put the electricity on the
doors. I was kidding; I told her to put iron bars
on the door. She said she was going to ask Charlie
Dwight, her attorney, what to do about it, if they
could do anything to her.

Q. When did that conversation occur?

A. It was after the arrest. It might have been
that same night; I don’t remember.

Q. Did that conversation occur before or after
the 8th of June or the day of your trial? It was in
between the time of your arrest and the time of
your trial? A. Yes. .

Q. Your trial was continued ?

A. ‘To my knowledge, it was.

The Territory of Hawau 131

(Testimony of Lou Rodgers. )

Q. It was set for one day and it was continued,
isn’t that correct ? A. It was. [91]

Q. And the only time I saw you outside of this
instance that you have referred to is when I ap-
peared in court and you were already in court when

I got to the Wahiawa court? A. What.
Q. When I got to the Wahiawa court you were
already there? A. Yes.

Q. You know what happened?

A. Well, you was our counsel.

Q. You had a trial down there?

A. No, not yet. It is still pending, as far as I
know.

Q. You don’t know that it has been dismissed ?

A. I do not.

Q. You weren’t tried at all down there, isn’t
that a fact?

A. Iwas down there. There was never any trial.

Q. Don’t you remember there was a jury de-

manded in your case? A. Ido not.
Q. And the prosecution dropped it?
mw, Adopaot.
Q. You know the other girls were dismissed ?
A. Ido.
Q. That was the incident that I was referring to

erowing out of this incident of June Ist or 2nd,
that case at Wahiawa? A. It was what?

Q. The case in Wahiawa arose as a result of
that [92] incident of June 1st or 2nd, isn’t that
correct ?

132 Ilene Warren vs.

(Testimony of Lou Rodgers.)

A. You came out there for that same reason
June 2nd.

Q. What was that again?

A. You came out there when the trial was going
on June 2nd.

Q. Now, Miss Rodgers, getting back to the time
that you stated that this conversation took place
between Mrs. Warren and myself, what did
‘‘Speed’’ say ? A. About what?

Q. What? A. About what?

Q@. About this conversation with me that you
testified to here about locking the house up.

A. Well, we went to your office and she asked
you about it.

Q. What did she say about it?

A. She asked you how about wiring the building
up and what they could do to her.

Q. She said how about wiring the building up?

A. And what they could do to her and you said
you didn’t think they could do anything.

Q. That is the whole conversation ?

A. Well, that is what she came there for.

Q. Is that all that happened ?

A. She said that and she said, ‘‘ Well, I think we
will go and do it.”’

Q. Did I say anything?

A. You said ‘‘Okay”’’, that is all.

@. When did she ask me that question ?

A. Speaking offhand, I don’t know what date it

The Territory of Hawaun 133

(Testimony of Lou Rodgers. )

Q. No, no, I am not talking about the date. In
[93] relation to the conversation, were you both
in my office? A. I was there.

Q. Have you ever noticed when you and Mrs.
Warren were in my office what the condition of the
doors were? A. You have two offices there.

Q. Iam talking about the doors between the two
offices. A. They were shut.

Q. Have you ever been into my office with Mrs.
Warren and the door was shut? Ae cs:

Q. When was that?

A. Most of the time.

Q. Now, that is all that transpired,—she said,
“T think I am going to wire this place’’ and I said,
“T don’t think they could do anything to you’”’ and
she said, ‘‘I am going to do it,’”’ and I said, ‘‘Okay’’?

A. That is all I heard.

Q. You recall testifying yesterday as to the
nature of the conversation? You know what you
said yesterday ?

A. The same thing as I say now.

Q. Do you recall yesterday when counsel asked
you as to the conversation you said that Mrs. War-
ren asked me about equipping the place to prevent
drunken soldiers and robbers and police—you an-
swered yes and no—from coming to the house; did
Mrs. Warren make that statement?

A. Yes, sir.

Q. To me?

134 llene Warren vs.

(Testimony of Lou Rodgers.)

A. That is what was in the conversation about
the wiring. [94]

Q. That is what I want to get,—what was Mrs.
Warren’s conversation, what words did she use and
what words did you use?

A. I used the words yesterday she wanted to
wire the place up for drunken soldiers and burg-
lars

The Court: The Court will take a short recess.

Mr. Dwight: May we have the rest of the an-
swer ?

@. What else was there?

A. (Continuing) —and the policemen.

The Court: Court will take a short recess.

(A brief recess was taken.)

(The last question and answer were read.)

By Mr. Dwight:

@. And you told her that would be a good idea?

A. After you consulted her.

Q. Iam speaking of your conversation.

A. <A good idea of what?

@. Your conversation when Mrs. Warren first
spoke to you about the installation of equipment.
You have already testified about Mrs. Warren’s
language. What did you say?

A. Well, I said it would be a good idea to put
iron bars on the place.

Q. Did you say anything about electricity?

A. No.

The Territory of Hawai Nes

(Testimony of Lou Rodgers. )

Q. You said it would be a good idea to put iron
bars. Now, Miss Rodgers, did you talk to Mr. Kiehm
yourself ? A. When?

Q. At any time. A. No.

Q. You were present. Were you present at a
conversa- [95] tion between Mrs. Warren and
Kiehm? A. I don’t recall.

Q. Kiehm, the man that you identified yester-
day?

A. Well, I don’t recall of going down there at
the garage.

Q. You don’t know what conversation took place
between Mrs. Warren and Kiehm?

A. Well, at the house I do; yes.

Q. All right, what happened at the house? First,
when did that conversation take place?

A. Well, I don’t know what date.

Q. Can you give us some idea in relation to June
Ist?

A. Well, it is somewhere around in a week’s
time that she was talking to him about it after she
talked to you.

Q. It was after she talked to you?

A. Yes.
Q. And about a week’s time after she talked to
you? A. Yes, something like that.

Q. And when did she talk to you first? Let us
get this time straightened out.

A. She was talking to me when we were in jail
mostly and afterwards when we was down at your
office.

136 Ilene Warren vs.

(‘Testimony of Lou Rodgers.)

Q. That is the only time she talked to you about
it, when she was in my office ?

A. Well, it was after we came out of jail, when
we got home.
In other words, when did you get out of jail?
The 3rd of June.
The 3rd of June and you went home?
Yes. [96]
You didn’t come to my office ?
I don’t reeall of going there.
Are you sure you didn’t come to my office?
I don’t remember.
Well, anyway, you went home and when in
relation to that time after you got home, how long
after in days or hours did you have your conversa-
tion with Mrs. Warren?

A. Well, it was during the trip going home the
previous day.

@. You mean when you were in jail you talked
about it? A. Yes.

@. Were you kept in separate cells or were you
kept together ?

A. In one dormitory together.

Q. In one dormitory together. You had a con-
versation in jail; what was that conversation ?

A. Mostly of the raid and how she was going
to fix the house.

@. And what did you say, what part did you
take in the conversation ?

See a

The Territory of Hawai 137

(Testimony of Lou Rodgers.)

Same as I stated yesterday.

What did you say?

About putting those ion bars on.

And that is while you were in jail?

Yes.

And while you were held for investigation?
Yes.

Q. And before anybody could talk to you, isn’t
that correct? [97] A. Yes.

Q. So the first conversation, as I understand it,
occurred before you came to my office and while you
were in jail? A. Yes.

Q. When did the second conversation occur be-
tween you and Mrs. Warren?

rPoro Por

A. It was after we got out of jail.

Q. And that took place at Wahiawa?

A. Yes.

Q. And that took place at Wahiawa?

A. Yes.

Q. And how many days after you got out of
jail?

A. I think it was a couple of days; I am not

sure.
Q. A couple of days. Then how many days after
that you say you came to my office and had a con-

versation ? A. Possibly a week.
Q. Possibly a week? A. After the trial.
Q. After the trial? A. Yes.

Q. You are sure about that? A. Yes.

138 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. This conversation you say took place in my
office one week after your trial ?

A. I don’t say it is exactly a week; it was some-
where around about a week.

Q. About a week after the trial, and when did
you or Mrs. Warren speak—when did you see
Kiehm ?

A. About the same time; she did, not me.

@. Well, were you present?

A. I don’t remember being present. [98]

@. You don’t remember being present. You can-
not testify definitely that Mrs. Warren spoke to
Kiehm ? A. No, I cannot. |

Q. You cannot because you didn’t see them talk?

A. I don’t remember of being with them.

Q. You can’t tell us what the conversation was?

A. No.

Q. Mr. Kiehm, as far as you were concerned, is
out of the picture; at least, you didn’t hear any of
the language used by Mrs. Warren or by Kiehm?

A. No.

Q. Now, when did you see Kiehm in the house?

A. Well, I don’t know just when he was there
but he was in there off and on. She had him do odd
jobs for her.

@. He was an electrician?

A. Mechanic and electrician, I guess.

Q. You say he had been in on several occasions
doing odd jobs? A. Yes.

The Territory of Hawaun 139

(Testimony of Lou Rodgers. )

Q. When did you see him putting in this wiring ?

A. After we got the sheet of metal.

Q. You were present when the metal was
bought? A. I was.

Q. And when did—do you recall the date when
the metal was bought? Ae a Gan %.

Q. You have no idea? Ay licaner.

Q. It was purchased from the Honolulu Iron
Works? [99] A. It was.

Q. You know what month it was purchased in?

A. June.

Q. Are you sure of that?

A. To my recollection.

Q. How many days after the purchase did you
see Kiehm around the house?

A. Well, I just don’t remember.

Q. What is that? A. I don’t remember.

Q. You don’t remember that ? A. No.

Q. You remember he was busy around there.
You testified on direct examination he put one
transformer in and by and by put another one in?

A. Yes.

Q. You were present at that time ?

A. Yes.

Q. You recall one of those transformers were
put in?

A. It was in June but I don’t know what date.

Q. You don’t know what date. You never talked

to Kiehm ?

140 Ilene Warren vs.

(Testimony of Lou Rodgers.)

A. I did while he was around the house fixing
the wire.

Q. What statements did he make?

A. Well, I just don’t remember what the con-
versation was, mostly about the wire.

Q. You were bitten by that wire?

A. I was.

Q. You got sort of a vibration? [100]

A. I did.

Q. You tested the equipment? Answer my ques-
tion yes or no. A. First?

Q. Did you test the equipment ?

A. Well, I don’t know what you mean.

(The last answer was read.)

Q. You understand that?

A. Yes, I tested it.

Q. You got the electricity out of it?
A. Certainly.

@. How many times did you test it 2
A. Onee.

Q. You have to throw the switch?
i WOLL GlG:

Q.

You say that switch was located about three
or four feet off the ground and to the left of the
door looking out?

Mr. Young: To the right of the door.

Mr. Dwight: To the left, looking out.

Mr. Young: It is confusing to this witness.

The Territory of Hawa 141

(Testimony of Lou Rodgers.)

By Mr. Dwight:

Q. The switch was located on the right going in?

A. As you come in the front door.

Q. And on the left as you go out?

A. Yes.

Q. And it is situated in a position about three
or four feet off the ground?

A. Well, to my knowledge and measurement.

Q. Now, you made a statement, did you not, to
the [101] Police Department concerning this mat-
ter? A. When?

Q. When were you first questioned about this
case? 1 will withdraw the last question.

A. Well, it is the same time Mrs. Warren was
in jail after the electrocution.

Q. Well, you were questioned the day following
and the day after that?

A. Iwas only down there once.

Q. And you were at Captain Hays’ office?

A. I was.

Q. Were you in Captain Levi’s office out at
Wahiawa?

A. The only time I was there was when he sent
for me.

Q. I happened to be there and you saw me there,
isn’t that correct?

A. JI happened to be there but I did not see you.

Q. The first time that you ever gave any state-
ment to the police authorities was subsequent to

142 llene Warren vs.

(‘Testimony of Lou Rodgers.)
the death of Wah Choon Lee, isn’t that correct,
after that ?
A. It was while Mrs. Warren was in jail. I don’t
know.
Q. It was after the death of Wah Choon Lee?
A. Yes.
@. And you were questioned in the police station

by Captain Hays? A. Yes.
Q. And at that time Captain Hays exhibited to
you certain electrical equipment ? A. Yes.

@. And every question that he asked you was
based upon that electrical equipment, wasn’t it?

[102]
A. Yes.
Q. Now, that statement was reduced to writing,
wasn’t it? A. Yes, some of it.

Q. You remember the question Captain Hays
asked you, ‘‘What has Charlie Dwight got to do
with this?’’ A. J don’t remember.

Q. You don’t remember that question, like a
bolt out of the blue? You remember that?

ee Nos ll oloian ts.

Q. You remember telling Captain Hays that you
and Mis. Warren were in my office and that you
and Mrs. Warren were leaving my office and walk-
ing through the door and out into the hall when
Mrs. Warren says, ‘‘I am going to electrify that
place’’, and I says, ‘‘Okay by me’’? You remember
making that statement?

The Territory of Hawa 143

(Testimony of Lou Rodgers. )

Mr. Young: I have no objection to the statement
being made to the witness if it is for the purpose of
impeaching this witness. If it isn’t, it 1S Incom-
petent, irrelevant and immaterial.

Mr. Dwight: It is for no other purpose than to
impeach her. Will you answer my question ?

A. I don’t remember of ever saying that.

Q. You deny you made a statement to this effect,
that ‘‘Speed’’ Warren and you were in my office ?

A. If I made it to Captain Hays?

Q. To the police, a statement, they got it in
writing ? A. I don’t remember.

Q. And that as you and Mrs. Warren were leav-
ing my [103] office Mrs. Warren said, ‘‘I am going
to electrify the house’’ and I said “Okay by me’’
and that was the only conversation took place in my
office. Do you remember making that statement to

the police? A. When?
Q. In writing, and you signed it. Don’t you re-
member it? A. I remember it.

Mr. Young: I submit the statement be given to
the witness. The witness has a right to see that
statement before a foundation can be laid for im-
peachment. That is the rule.

Mr. Dwight: I can ask her if she made a differ-
ent statement at some other time. If she demies it—

Mr. Young: I will do you one better. I will give
you the statement with the condition that you read
the whole statement to the jury.

144 Ilene Warren vs.

Mr. Dwight: I will ask the government to pro-
duce the statement.

Mr. Young: I will give the statement upon that
condition.

Mr. Dwight: I made the motion to compel the
prosecution to produce the statement.

Mr. Young: I can furnish the Court. We do not
have to give our private papers.

Mr. Dwight: Counsel has come in here time and
time again. He says, ‘‘I have the authorities.”’

Mr. Young: Counsel is making the motion. The
burden is on him. [104]

Mr. Young: I will give the statement upon that
condition. I will let it all be read to the jury, so
that they can get the whole thing.

Mr. Dwight: I made the motion to produce. I
want the ruling of the Court.

The Court: The Court will grant the motion to
produce.

Mr. Young: I refuse to give the statement sub-
ject to being in contempt of Court. I believe the
Territory has a right to retain the statement.

Mr. Dwight: If we are going to have any argu-
ment, I ask the jury be excused.

Lhe Court: The jury may be excused.

(The jury left the court-room.)

The Court: This is an argument on motion to
produce. The Court will set aside its decision pend-
ing the argument.

The Territory of Hawai 145

(Testimony of Lou Rodgers. )

Mr. Dwight: The law is simply this: I can ask
any witness, for the purpose of impeachment, if
they made a statement, an inconsistent statement at
some other time.

The Court: You have now made a motion to pro-
duce.

Mr. Dwight: Yes, and the evidence discloses that
such a statement exists and that statement is in the
possession of the Public Prosecutor, and I have a
right to compel the production of that document.
It can compel it from the adversary at any time.
I can call on the government at any time to produce.
There is nothing [105] incompatible with the prose-
cution, unless they are hiding the truth.

Mr. Young: We are not entitled to what My.
Dwight has in his file any more than he 1s entitled
to what we have in our file. Furthermore, I have
offered in good faith to your Honor to give this
statement to Mr. Dwight upon condition that he
take the whole statement and read it all to the jury.
IT am not going to have him read portions of it to
the jury. If he wants my statement, he can take it
all. That is the condition. I submit he has no author-
ities.

The Court: Have you any authorities on that?

Mr. Dwight: I have the authorities on that.

The Court: I would like to look at those author-
ities.

Mr. Young: I submit to your Honor’s ruling at

this time.

146 Ilene Warren vs.

The Court: The Court would like to see the
authorities on that point.

Mr. Dwight: I will get them now.

The Court: Let us have a short recess pending
that.

(A brief recess was taken.)

In Chambers.

Respective counsel being present, and at the
request of counsel for the defendant, the fol-
lowing proceedings were had:

(The reporter read as follows:)
“Q. You deny you made a statement to this
[106] effect, that ‘‘Speed’’ Warren and you
were in my office?

A. If I made it to Captain Hays?

Q. To the police, a statement, they got it in
writing ? A. I don’t remember.

Q. And that as you and Mrs. Warren were
leaving my office Mrs. Warren said, ‘‘I am go-
ing to electrify the house’’ and I said ‘‘Okay
by me”’ and that the was the only conversation
took place in my office. Do you remember mak-
ing that statement to the police?

A. In writing?

Q. In writing, and you signed it. Don’t you
remember it?

A. I remember it.’’)

The Territory of Hawau 147

(Testimony of Lou Rodgers. )
In Court.

Mr. Dwight: May it please the Court, in view
of the fact that the record shows that this witness,
in answer to my question if she made the statement
to Captain Hays to the effect that when Mrs. War-
ren and her were leaving my office and going out
into the hall Mrs. Warren turned around and said,
“T am going to electrify the house’’ and I said
‘“‘Okay’’, answered that was the only statement
made to the police, so I withdraw my request for
the written statement.

Mr. Young: Is that true?

Mr. Dwight: We read the record. In view of
the record, it is not inconsistent any more. [107 |

The Court: The Court withdraws its ruling on
the motion. Proceed.

By Mr. Dwight:

Q. Now, Miss Rodgers, can you explain why you
made one statement to the police and another in
court here today concerning that conversation ?

A. Well, I only answered the questions what the
officer, which if I am not mistaken was—Quinn was
one—to my knowledge of what I stated yesterday
and today. I tried to do the same of what I had
written out.

Q. Your memory in June was much fresher than
it was yesterday ?

A. It was quite some time from June to now.

148 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. Have you talked to anybody in the Police
Department or in the Public Prosecutor’s Office
between the time that you made your statement and
the time that you testified here in Court ?

A. I went to Mr. Young’s office.

Q. Who else did you talk to?

A. That is all.

Q. Did you talk to anybody in the Police De-
partment ? A. No.

Q. Never talked to anybody. Do you recall vis-
iting Mrs. Warren about a week ago?

Bh Oley

Q. That is the first time you visited her since

this incident, isn’t that correct? A. No.

Q. Is that right? [108] A. No.

Q. You visited her since this death of Wah
Choon Lee? A. Yes.

Q. At another time? A. Yes.

Q. When was that?

A. Right after she got out of jail.

Q. Right after she got out of jail and then you
visited her again the second time last week?

A. Yes.

Q. You recall having a conversation with her?

A. Well, not that I remember of. The first time
I visited her was about this, then she came down
to the house last week; it was Friday.

@. Came up what?

A. She came down to my house last Friday, that
is, parked the car in front.

The Territory of Hawau 149

(Testimony of Lou Rodgers.)

Q. Last Friday. She asked you some questions
and you answered them, isn’t that correct?

A. Yes.

Q. Do you recall Mrs. Warren asking you if
you said that you had a conversation in my office?

A. What is that?

Q. At which you were present, when electrical
equipment was discussed ?

A. She didn’t state anything of that.

Q. She didn’t state anything about that?

A. Not in my presence last week.

Q. I mean last Friday. What did she ask you?
She asked you two questions. [109]

A. I don’t know what it was now.

Q. You don’t remember. Well, let me refresh
your memory. You remember Mrs. Warren asking
you what do you mean by lying about bringing
Charlie Dwight into the picture?

A. I don’t remember saying it.

Q. You remember your answer, “I do and I
do not’’?

A. I don’t remember saying that.

Q. My name was not brought into the conversa-
tion on Friday? A. I don’t remember.

Q. And where did this conversation take place,
at Mrs. Warren’s home or at your home, last
Friday ? |

A. She drove down in front of the house.

Q. And the conversation took place in front of
her house? ~~ Sinton ciemy house:

150 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. All right. On the first visit that you made
up to Mrs. Warren’s house, you went up to Mrs.
Warren’s house that time after the accident?

A. Yes, she met me on the street one day right
after New Year’s. She asked me to come up after
she got moved in her new home.

Q. You went up? A. Yes.

Q. That was after New Year’s this year?

A. Yes.

Q. You remember the date?

A. No, I don’t.

Q. You remember any conversation that took

place? [110]

A. She wished me a Happy New Year.

Q. That is all she did?

A. Well, conversation went on; it is not inter-
esting.

Q. I see. You have posted ‘‘No Trespassing”’
signs? You have seen ‘‘No Trespassing’’ signs,
haven’t you, Miss Rodgers ?

A. JI have seen what?

Q. ‘‘No Trespassing’’ signs.

A. I haven’t.

Q. What is that? A. I haven't.

Q. You know where the driveway is going in?
A. What driveway ?

Q. Going into the yard. A. Which one?
Q. From the front side. A. Which place?
Q. Mrs. Warren’s home, or, rather, her home
when you lived with her.

The Territory of Hawa 151

(Testimony of Lou Rodgers. )

A. No, I didn’t.

Q. Didn’t notice any ‘‘No Trespassing’”’ signs?
A. No.

Q. Didn’t see any put up anywhere?

A. No.

Q. Didn’t see any in the back of the lot?

A. No.

Q. Didn’t see any in the front of the lot?

A. No.

Q. Did you look for any? A. No. [111]
Q. Now, this entire statement, Miss Rodgers,

that you made to the police was based upon certain
equipment that was in your presence and they
were questioning you about it, isn’t that correct?
A. Yes.
Mr. Dwight: Your witness.

Redirect Examination

By Mr. Young:

Q. Miss Rodgers, when the police had you at
the police station shortly after the death of Wah
Choon Lee you say they had some electrical equip-
ment in there? A. They did.

Q. And did they ask you if that equipment was
the same as was in there when you were there?

A. They asked me, yes.

Q. And that was how they got the lead 2

A. Yes.

152 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. And then they questioned you about what you
knew personally about that equipment ?

A. They did.

Q. How you knew it was in the house and how
it was put in there and all such things?

A. They did.

Q. And everything you told the police was based
upon your memory and your own observation and
not upon what you saw in the police station ?

A. Yes, sir.

Q. Now, there has been some testimony, Miss
Rodgers—I don’t know whether you withdrew your
privilege—you testified you are a prostitute out
there? [112]

A. Well, by force, yes.

Mr. Dwight: What is the privilege? I submit she
has no right to claim her privilege. She has to
answer.

Mr. Young: I will withdraw the question.

Q. Now, Miss Rodgers, June Ist or 2nd, 1936,
when you were present at that place, when the
police came, what were you doing for Mrs. Warren ?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial and as improper redirect ex-
amination.

Mr. Young: Your Honor allowed me, your Honor
said I could go into it on redirect examination. I
think this witness has a right to show what the
whole thing was. |

The Territory of Hawain 153

(Testimony of Lou Rodgers. )

Mr. Dwight: I submit it is improper redirect ex-
amination.

The Court: The Court sustains the objection as
improper redirect examination.

By Mr. Young:

Q. Miss Rodgers, do you know what type of
business, from your own personal knowledge, Mrs.
Warren was having at her house on June 1, 1936?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial, as attempting to directly
bring into the case the character and reputation of
the defendant and that is not an issue in this case.

Mr. Young: If your Honor please, is the Terri-
tory supposed to let all this go in on cross-examina-
tion and not be allowed to bring it out? [113] You
are making Mrs. Warren the white lily and this
will be——

The Court: The Court will overrule the objection
on the ground stated; the grounds of the objection
will be overruled.

Mr. Dwight: May it please the Court, may I be
permitted to argue that a little further?

The Court: You may state your grounds.

Mr. Dwight: My grounds are these, that it 1s in-
competent, irrelevant and immaterial, as tending
directly to bring into the record the character of
the defendant.

The Court: Is that your grounds?

Mr. Dwight: That is my grounds, absolutely.

The Court: Objection will be overruled.

154 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Mr. Dwight: Does the Court want the universal
rule on that?

The Court: The Court knows that.

Mr. Young: Will you read the question, Mr. Re-
porter?

(The last question was read.)

A. House of ill fame.

By Mr. Young:
Q. By that you mean
Mr. Dwight: May I move to strike the answer
upon the same ground ?
The Court: You may so move. Motion denied.
Mr. Dwight: Exception.
The Court: Exception noted.

By Mr. Young:

Q. And these other girls that were there at that
time, [114] were they working for her?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial, what the girls have to do
with it.

The Court: Objection overruled.

‘Mr. Dwight: Exception.

Mr. Young: Read the question, please.

(The last question was read. )

By Mr. Young:
Q. You understand the question? A. Yes.
@. Will you please answer?
A. House of ill fame.

The Territory of Hawau 155

(Testimony of Lou Rodgers.)

Q. The question was, do you know what the
other girls were doing? A. The same thing.

Q. Now, did Mrs. Warren ever tell you the rea-
son she went to Mr. Dwight’s office ?

Mr. Dwight: Objected to as improper redirect
examination. He certainly should have exhausted
this witness on direct.

Mr. Young: [I submit the question.

Mr. Dwight: It has already been asked and an-
swered.

The Court: The objection will be sustained. It
has already been taken up on direct examination.

Mr. Dwight: You can only redirect on new matter
on Cross. .

Mr. Young: Withdraw it.

Q. Now, you testified, Miss Rodgers, as to cer-
tain [115] interviews, times and dates with respect
to going to Mr. Dwight’s office. Are those exact
dates or close estimates of the time?

A. Close estimates of the time.

Q. To your best recollection? A. Yes.

Q. You testified, I think on cross-examination,
that you never heard Mrs. Warren speak to Mr.
Kiehm about the equipment. Did Mrs. Warren ever
‘tell you what she had told Kiehm?

A. Well, she said something about it to me first
but I don’t remember going down to Kiehm’s office
or the garage to talk about it.

Q. Did she tell you?

A. She did, when she came home.

156 Ilene Warren vs.

(Testimony of Lou Rodgers.)

«. What did she say?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial and improper redirect ex-
amination.

The Court: Objection overruled.

Mr. Dwight: Exception.

The Court: Exception noted.

By Mr. Young:

@. What did she tell you she told Kiehm?

A. She said she was down there and told Kiehm
about fixing the wires and fixing the doors.

Q. That was sometime after the raid of June
Ist, is that correct? A. Yes.

Q. Sometime before you went to Mr. Dwight’s
office, [116] is that correct? A. Yes.

@. Before you moved from Mrs. Warren’s
place? A. Yes.

@. As to the exact date, you are not sure?

A. No.

®. That is the sequence in the events?

A. Yes.

@. Now, you say you tested this equipment once
after it was put in, is that correct? A. Yes.

Q. How did you test it? What did you do?

A. Well, the switch was turned on and I touched
my hand on the door.

Q. On what part of the door?

A. On the metal part of the door, outside.

®. On the outside of the door? A. Yes.

The Territory of Hawait oq

(Testimony of Lou Rodgers.)

Q. You were dry at that time? A. Yes.

Q. The ground was dry? ie ~“Vies.

Q. Were you standing in the house at the tune?

A. The door was open and I walked outside, the
switch was thrown and I touched the door. Of
course, the door had gone to.

Q. Was that before or after Mr. Kiehm fixed
the transformer ?

A. Well, that was before he fixed it.

Q. In other words, you never touched it after
he [117] fixed the transformer? A. Yes.

Q. The only time was before he fixed it?

A. Yes.

Q. And you did get a shock? A. Yes.

Q. Just illustrate how you touched that door
with your hand.

A. Just touched it up on top (demonstrating).

Q. With your hand like that, on your finger ?

A, Yes.

Mr. Young: No further questions.

Recross Examination
By Mr. Dwight:

Q. Just one more question I overlooked on
crogs-examination. Miss Rodgers, did you tell the
police at the time you were questioned by them that
it was Mr. Kiehm who put the equipment in?

A. Idon’t remember if I did.

Q. You don’t remember ?

A. Speaking or writing?

158 Ilene Warren vs.

(Testimony of Lou Rodgers.)

Q. Speaking or writing.

A. I don’t remember because I came out of the
show—one evening going to the show, an officer
asked me if I knew. I said I didn’t. He asked me if
it was Kiehm. I said it was the garage man. At that
time I did not know his last name; all I knew him
by was John.

Q. In other words, they asked you who put that
electrical equipment in; you said it was John?

A. I said it was the garage man. [118]

Q. Then you said it was John? A. Yes.

Q. Do you recall everything you told the police
down there or not?

A. I don’t recall what I told them. I do not re-
member all they asked me.

(. In other words, you don’t remember your
Whole, complete statement ? A. No.

Mr. Dwight: At this time I move to strike the
testimony of this witness upon the ground that it
now affirmatively appears that the evidence the
government is now offering by virtue of placing this
witness on the stand was obtained as the result of
an Ulegal search and that this evidence tends to
incriminate this defendant and violates her rights
under the Fourth and Fifth Amendments to the
Constitution. I am ready to argue the motion.

Mr. Young: Now, we object strenuously to the
motion. It shows from the record the witness has
testified from her memory as to what she saw. It
doesn’t make her testimony unlawful in this case.

The Territory of Hawai 159

She is giving everything from her own memory. I
submit the motion should be denied.

Mr. Dwight: I am ready to argue the case. I ask
the jury be excused.

The Court: You desire to argue it?

Mr. Dwight: I desire to argue it. It will only be
a five-minute or ten-minute argument. [119]

The Court: The jury will be excused pending this
argument. Mr. Dwight says it will be about five
minutes. It will probably be a little longer. You
are excused for at least ten minutes.

(The jury left the court-room. )

(Mr. Dwight argued in support of his motion to
strike, citing 251 U. 8. 385, Silverthorne Lumber
Co. vs. United States.)

Mr. Young: I will just say a few words. I am
perfectly in agreement with the law cited by coun-
sel, if it were applicable, but it 1s not. This is a
ease of homicide. We are going to prove it was
electrocution by the people on the outside. (Argu-
ment.) I submit the motion to your Honor.

The Court: The Court is ready to rule. This evi-
dence, which Mr. Dwight asked to be stricken and
excluded upon the ground that it is an invasion of
the defendant’s constitutional rights under the
Fourth and Fifth Amendments, in that, as he
argues, the evidence is based upon the evidence
seized and the illegal search and seizure, 1s denied.
The Supreme Court of the United States has stated
in the Silverthorne case that evidence, although

160 Ilene Warren vs.

seized in violation of the Fourth and Fifth Amend-
ments and ordered suppressed, still that evidence is
not sacred nor inaccessible. The testimony of this
witness shows throughout her direct and ecross-ex-
amination the evidence is based upon her memory
at the time [120] she lived in that house, saw the
equipment being installed and had an opportunity
to see it, test it and describe it. Although she did
make the statement in answer to Mr. Dwight that
the entire statement made to the police was based
on the equipment there in her presence, she also
made the statement on redirect, in answer to Mr.
Young, that her testimony here in this Court was
based upon her memory at the time she lived there.
Certainly the Court, under the authority in the
Silverthorne case, denies the motion.

Mr. Dwight: May I save an exception?

The Court: Exception may be noted. Mr. Young,
have you any witnesses?

Mr. Dwight: I think the Court might rule on my
motion, so that I may save my exception, in the
presence of the jury.

Mr. Young: That is the proper procedure.

‘Phe Court: Call the jury.

(The jury returned to the court-room and jury
box.)

The Court: Stipulate the jury is present. Mr.
Clark, Reporter, will you read the Court’s ruling
on Mr. Dwight’s motion ?

The Territory of Hawai 161

(The reporter read as follows :)

“The Court: The Court is ready to rule. This
evidence, which Mr. Dwight asked to be
stricken and excluded upon the ground that it
is an invasion of the defendant’s constitutional
rights under the Fourth and Fifth Amend-
ments, in [121] that, as he argues, the evidence
is based upon the evidence seized and the 1-
legal search and seizure, is denied. The Su-
preme Court of the United States has stated in
the Silverthorne case that evidence, although
seized in violation of the Fourth and Fifth
Amendments and ordered suppressed, still that
evidence is not sacred nor inaccessible. The
testimony of this witness shows throughout her
direct and cross-examination the evidence 1s
based upon her memory at the time she lived in
that house, saw the equipment being installed
and had an opportunity to see it, test it and
describe it. Although she did make the state-
ment in answer to Mr. Dwight that the entire
statement made to the police was based on the
equipment there in her presence, she also made
the statement on redirect, in answer to Mr.
Young, that her testimony here in this Court
was based upon her memory at the time she
lived there. Certainly the Court, under the au-
thority in the Silverthorne case, denies’ the
motion. ”’

162 llene Warren vs.

Mr. Dwight: May I save an exception?

Lhe Court: You may.

Mr. Dwight: May I object to the testimony of
this witness upon the same grounds?

The Court: You may.

Mr. Dwight: May my objection and exception
run through this entire testimony ?

The Court: The objection is overruled and the
exception is noted. [122]

Mr. Dwight: May I save an exception to the
overruling of my motion to strike?

The Court: Yes, and the record may so show.

ee ————

JOHN KIEHM,

called as a witness on behalf of the plaintiff, being
first duly sworn, testified as follows:

Direct Examination
By Mr. Young:
Q. What is your name? A. John Kiehm.
Mr. Young: Mr. Kiehm, speak a little louder and
face the jury.

What is your occupation?
Mechanic, auto mechanie.

Q. Where do you live? A. At Wahiawa.
Q. How do you spell your name?

A. K-i-e-h-m, Kiehm.

Q. And it is pronounced ‘‘Keem’’?

A. Yes.

Q. Like ‘‘Keem’’? A. Yes.

Q.

A.

The Territory of Hawai 163

(Testimony of John Kiehm.)

Q. How long have you been an automobile me-
ehanic ? A. Ever since 1924.

Q. Where have you been working at that trade ?

A. I have been working here on the Island of
Oahu and over at Lanai.

Q. More particularly on the Island of Oahu, at
what place? [123] A. At Wahiawa.

Q. And who did you work for at Wahiawa?

A. TI worked for Castner Garage and I left
there in 1929 or 1930, then I had my own business
for about a couple of years. Then the business was
formed into a corporation and later it was dlis-
solved, then I worked

Q. We won’t go into the organization of that
company. Who were you wroking for in 19386
about between the months of, say, June and Sep-
tember ?

A. I was working for Driveway Garage.

Q. You were working for Driveway Garage?

A. Yes, Wahiawa.

@. Do you know a person by the name of Lene
Warren, ‘‘Speed’’ Warren? A. Yes.

Q. Will you indicate?

A. There (indicating the defendant).

The Court: Let the record so show.

By Mr. Young:
Q. Do you know where she was living?
A. She was living in Wahiawa.
Q. At what place in Wahiawa?

164 Ilene Warren vs.

(Testimony of John Kiehm.)
A. It was two blocks above the court house—
one block above the court house and two blocks

, beyond.
(). Would you know that house if you saw a pic-
ture of it? A. I think I do.
Mr. Young: (To the Clerk) May I see the
pictures ?

The Court: “D”, “EB”, “B” and “@”, [124]

By Mr. Young:

©. Mr. Kiehm, I show you Prosecution’s Ex-
hibit ““G’’ in evidence. Will you examine that,
please ?

(Mi. Young handed the picture to the witness. )

A. Yes, sir.
Q. Is that a picture of ‘Speed’? Warren’s
house ? A. (Hxamining the picture) Yes, it is.

Q. And also I show you Prosecution’s Exhibits
““D’’, “BW”? and “‘F’”’ in evidence.

(Mr. Young handed the pictures to the witness.)

Mr. Dwight: Are those in evidence?

Mr. Young: Yes, they are in evidence.

A. (Examining the pictures) Yes, that is her
house.

Q. Is that a picture of ‘‘Speed’? Warren’s house
as you knew it? A. Yes.

Q. At the time, in 19362 A. Yes.

Q. Between the months of June and Septem-
ber? A. Yes.

Mr. Young: Now, if you will step down to this
plat just a moment, Mr. Kiehm. May this Ex-

The Territory of Hawai 165

(Testimony of John Kiehm.)
hibit ‘‘I’’ be introduced in evidence at this time to
illustrate the testimony of Lou Rodgers? It was
marked for identification. I offer it in evidence.
Mr. Dwight: I object to it as incompetent, 1r-
relevant and immaterial, no proper foundation
being shown for its admission; that it 1s not a fair
representation of the witness’ testimony. [125 |
The Court: That is for the jury to decide. It may
be admitted as Exhibit ‘‘I’’.

(The diagram referred to, having previously
been marked ‘‘Prosecution’s Exhibit I for iden-
tification,’’ was received in evidence and marked
‘“Pyosecution’s Exhibit I[.’’)

By Mr. Young:

Q. Now, I am going to explain this briefly to
you, Prosecution’s Exhibit ‘A’’ in evidence, as you
can see from the writing. This is Muliwai Street
(indicating) ; Kuahiwi Avenue (indicating) ; this 1s
the railroad down here (indicating). Do you believe
you can point out approximately the place where
‘Sneed’? Warren lived with reference to this
diagram ?

Mr. Dwight: Well, it is on the map with her
name on it.

Mr. Young: He does not know her name. If you
want him to point to it.

A. (Indicating on Exhibit ‘‘A’’) here.

By Mr. Young:
Q. This is the place here (indicating). That is
the location with regard to Muliwai Avenue (indi-

cating).

166 Ilene Warren vs.

(Testimony of John Kiehm.)

A. The house faces the front of the street; I am
not sure.

(. Is it on the street that goes past the court
house? A. One street above.

Q. That is the house portrayed in these pictures
that you have seen ? A. Yes.

Mr. Young: May the record show the identifica-
[126] tion on this plan of the lot marked ‘““Marvin
Connell”’, being the same as portrayed in the
pictures ?

The Court: Let the record show that.

By Mr. Young:

@. How long have you known ‘Speed’?
Warren?

A. I have known her since 1930, 1929 or 1930.

Q. 1929 or 19302 A. Yes.

@. While you were working for the Driveway
Garage, did you ever do any work for her?

va, il @lick

@. Will you please tell the jury just what the
nature of that work was and when you did it?

Mr. Dwight: Let us get the time first.

By Mr. Young:

Q. When did you do this work for her?

A. I have done a lot of work for Mrs. Warren
on her car, but pertaining to what work?

Q. Did you ever do any work on her house of
any kind whatsoever? A. I have, once.

Q. When did you do that?

The Territory of Hawai 167

(Testimony of John Kiehm.)
A. Sometime in July, 1936.

Q. July 1936? A. Yes.

Q. Are you sure? Do you know the date, the
number ? A. Yes, it was July 11th.

Q. July 11th? A. July 1th. [127]

Q. Why are you so sure of that date?

A. Because I had the receipt; I had the bill for
the job done.

Q. What is the date on the bill?

A. dubai:

Q. Did she charge that or did she pay you that
right after you did the work?

A. It was charged and she paid it on the 14th.

Q. The work was done on the 11th. Now, will
you tell the jury just what you did on this house
portrayed by the pictures? Tell what your conver-
sation was with Mrs. Warren.

A. Mrs. Ilene Warren came over the garage and
asked me if I could install some device, which I
could install in the house so the doors would be
shocked when the door is opened. I said, ‘‘Yes, 1t
could be done.’’ Later on I purchased a_trans-
former from the Service Motors and went over the
house and had the transformer installed, and there
was one wire leading to the front and one to the
back. The main wire was leading to a switch on the
door panel.

Q. Did you put the switch in?

A. I don’t recall.

168 Ilene Warren vs.

(Testimony of John Kiehm.)

@. But you did connect the wires to the switch ?

A. Yes.

Q. Did you? A. Yes.

Q. Where? What wire did you connect to the
switch? Where did that wire come from? Where
was it connected, the source? [128]

A. ‘The wire came from the fuse plug.

@. Was that the fuse plug that comes from the
ordinary lines ? A. Yes.

@. Leading from the poles outside?

A. No, the fuse plug was in there already.

Q. Was that the regular source of electricity in
the house ?

A. Not on the regular outside fuse plug; it was
an inside fuse plug.

@. I mean that was being fed by the pole out-
side. She did not have any electric plant in the

house ? A. That came from the outside pole.

@. You ran the wires from the switch to the
transformer ? A. Yes.

Q. Where was the transformer located 2

A. Located above the living-room door.

Q. Did you put that transformer in?

A, I did.

Q. What kind of a transformer?

A. Radio transformer.

Q. What kind of a radio transformer ?

A. It may have been Philco or Majestic.

@. Do you know whether or not, of your own

knowledge, it was a radio transformer?

The Territory of Hawai 169

(Testimony of John Itiehm.)

A. I was told it was a radio transformer.

Mr. Dwight: I move it be stricken.

Mr. Young: It may be stricken.

The Court: It will be stricken as to what [129]
he was told. The jury will disregard it.

Q. Where did the wires lead from the trans-
former?

A. One led to the front door, one to the back
door, one to the ground.

Q. When you say ‘‘to the ground’’, what do you
mean ?

A. By putting a pipe into the ground and hav-
ing a wire lead up the pipe.

Q. Where was the ‘‘ground”’ located with refer-
ence to the house?

A. On the side leading up to the kitchen stairs.

Q. That is the side on the front of the house?

A. On the front of the house (indicating on
picture).

Q. Hold it towards the jury (referring to
picture). Out there (indicating). One of those pic-
tures shows where the ground was?

A. It doesn’t show in the picture. The ground
was somewhere along here (indicating on picture).

Mr. Young: That is referring to Prosecution’s
Exhibit ‘‘G’’ in evidence.

Mr. Dwight: Mark the spot where it was.

Mr. Young: May I put an “X”’ there, Mr.
Dwight, on the spot?

Mr. Dwight: Yes.

(Mr. Young puts an ‘X”’ on Exhibit ‘‘G’’.)

170 Ilene Warren vs.

(Testimony of John Kiehm.)
By the Court:

Q. I will ask the witness is that ‘‘X’’ put cor-
rectly ? A. Yes.

By Mr. Young:

Q. Is that ‘‘X’’ where it should be?

A. Somewheres around here (indicating on Ex-
hibit “G7 aie Gi

Q. You got the ‘*X”’ in the right place?

A. Yes.

Q. And that is where the ground was connected ?
A. Yes.

Q. Now, did you do all this wiring yourself ?
A. Yes, I did.

Q. Was there anyone else helping you, to your

knowledge or recollection ?

A. I may have had a helper.

Q. You are not sure of that?

A. I am not positive.

Q. Now, do you know this lady that identified
you, Lou Rodgers? A. Yes.

Q. Do you know her? A. Ido.

Q. Did you at any time see her at that house
while you were putting that equipment in, that you
recall?

A. She may have been there and she may not; I
don’t know.

Q. You could not say one way or the other?

A. Iam not positive.

The Territory of Hawai 171

(Testimony of John Kiehm.)

Q. Do you know of your own knowledge
whether or not she was staying at that house at that
time? A. I think she was.

Mr. Dwight: I am going to move the answer be
stricken. If he has any definite information, he
could testify about it.

By Mr. Young:

Q. Do you know of your own knowledge or are
you just [131] guessing?

A. She was staying there on and off. She may
have been living there at the time, she may not; I
don’t know. I am not sure.

Q. You are not sure? A. JI am not sure.

Q. Now, did you tell ‘“‘Speed’’ how to operate
this?

Mr. Dwight: I object to it as leading.

Mr. Young: Withdraw the question.

Q. Did you have any conversation with ‘‘Speed’’
Warren as to this equipment after you put it in
the house ? A. I did.

Q. What was the nature of that conversation ?

A. It was concerning the wiring and as to how
to operate it.

Q. What was the conversation ?

A. She asked me, ‘By throwing the switch on,
will the electrical charge go in the door’’. I said
Wes,’

Q. And are you an electrician by trade?

A. Jam an auto electrician.

172 Llene Warren vs.

(Testimony of John Kiehm.)

Q. You are an auto electrician? A. Yes.

@. Have you ever wired a house before?

A. No.

@. Have you ever studied electricity ?

ANS IL Ou.

Q. What kind of study?

A. Home course, Wick’s Electrical Course.

@. This was the first time you attempted to wire
a house? [132] A. Yes.

(. Have you ever connected a transformer of
any kind to any building before? A. No.

@. I understand most of your electrical work is
in connection with automobiles ?

A. Automobiles, yes.

@. Goes along with that position as mechanic?

A. Yes.

@. Do you know of your own knowledge what
this transformer would do to this current ?

A. My own knowledge, I knew that thing would
give a shock to a person.

Q. Do you know what it would do with relation
to the strength of the current?

A. I was told it would produce about 650 volts.

Mr. Dwight: Never mind what you were told.
Move to strike that answer.

he Court: It may be stricken and the jury in-
structed to disregard it.

Mr. Young: Just tell what you know of your
own knowledge.

The Territory of Hawai Mie

(Testimony of John Jsiehm.)

Q. Do you know of your own knowledge what
that transformer would do to the electric current
going through it? ive Oo.

Q. You did not have any way of knowing it?

A. No, no way.

Q. When you connected it up the way you did,
you did not know what the effect would be?

A. I knew it would give a shock. [133]

Q. You did not know how strong the shock
would be or what the current would be that was
passing through 1t? ae No:

Q. Now, after that was once installed, did you
ever go back there and do anything else?

A. On the same wiring?

Q. Same place. A. No.

Q. Did you do anything—Withdraw that ques-
tion. How many times were you to the Warren
place in regard to this particular shocking device?

A. One time.

Q. Did you go to fix it, anything like that, after
it was once put in? Eel eclomate te call:

Q. You don’t know whether you did or not?

A. I don’t know.

Q. Were you ever requested by ‘“Speed”’
Warren to come up and fix it?

Mr. Dwight: Objected to as leading.

Mr. Young: I have exhausted the witness.

The Court: Objection overruled.

Mr. Dwight: Exception.

The Court: Exception noted.

174 Tlene Warren vs.

(Testimony of John Kiehm.)
By Mr. Young:

Q. Did she ever request you to come up and fix
it or do anything to it after you once put it in?
I don’t think she did.
Are you positive ? A. Iam not. [134]
She may and she may not have?
I can’t recall.
You can’t recall? A. I can’t recall.
Did you get any of the other equipment that
you pitt in that house?

A. I got the wires at the garage.

Q. You got the wires at the garage? <A. Yes.

Q@. When you connected the wires to the door,
what did the door look like? Can you describe it
from memory ?

A. It was a screen door and had a plate in
front.

Q. What kind of a plate?

A. Iam not positive what it was.

(). How big was the plate, how large?

A. I would say about one-third the size of the
ordinary screen door.

@. About one-third the size of the ordinary
screen door?

A. About one-third the size of the ordinary
screen door.
That was on the front of the door?
That was on the front of the door.
How did you attach the wire to the door?
That was soldered onto the screen.

OOP-OoOo>

POPS

The Territory of Hawaw 175

(Testimony of John Kiehm.)

Q. That made contact with the plate?

A. It did.

Q. Did you have anything to do with the pur-
chasing of that plate? A. No.

Q. Was that on the door when you came there?

[135 ]

A. I remember seeing a plate on the door.

Q. You can’t remember whether you put it on
or not?

A. Ican say there was a plate on the door; that
plate, I didn’t put on.

Q. In other words, you didn’t put the plate on
that was there when you came there? A. No.

Mr. Young: Pardon me just a moment, your
Honor. |

By the Court:

Q. May I ask a question? What material is that
plate made out of?

A. I don’t know whether it was galvanized or
copper sheet.

Q. Galvanized what?

A. Galvanized iron or copper sheet.

By Mr. Young:

Q. Mr. Kiehm, ave you acquainted with—With-
draw that question. How many times have you been
in ‘‘Speed’’ Warren’s place? |

A. T have been there a number of times doing
repairs to her stove.

Q. You repaired her stove once?

176 Ilene Warren vs.

(Testimony of John Kiehm.)

A. Yes, several times.

@. You remember the plan, the location, through
being in there?

A. I know just the bottom floor, not all.

Q. What part of the bottom floor are you ac-
quainted with? A. Just the living-room. [136]

Q. How about the front door?

A. And the front door.

Q. Do you remember whether or not there was
any stairs on the bottom floor ?

A. Two stairs, one leading upstairs and one to
the kitchen.

Q. Where was the bottom of this stairs with
reference to the entrance of the house?

A. As you enter, the stairs to the kitchen lead
straight ahead.

Q. Approximately how far was it from the door
as you entered the front door and stopped at the
door sill, approximately how far was it to the first
steps going up on the right?

A. Just about a step.

Q. Just about a step. Can you give us some
idea by indicating some object in front of you?

A. Over there to about here (indicating).

Q. Where?

A. Say about here to here (indicating).

Mr. Dwight: About 214 feet.

Mr. Young: About 214 feet.

The Court: It is stipulated 214 feet is indicated.

The Territory of Hawai 177

(Testimony of John Kiehm.)

By Mr. Young:

Q. Now, that is where the first steps started on
the stairs going upstairs? A. To the parlor.

Q. That is the parlor upstairs you are talking
about, two parlors? [137]

A. Two parlors, downstairs and upstairs.

Q. Now, when you say ‘‘parlor’’, you are talk-
ing about the one upstairs? —

A. The one upstairs.

Q. With reference to that entrance, can you tell
us where this switch was that you connected these
wires to?

A. The switch was right on the door post that
leads up to the parlor.

Q. On the door post? A. Yes.

Q. What door post?

A. As you enter the house and going upstairs.

Mr. Young: I think we better have a diagram of
that. It is five minutes to twelve. It will take a little
while. I suggest we continue the case.

Mr. Dwight: I have no objection, if it is for the
convenience of counsel. I have no objection to tak-
ing an adjournment at this time.

The Court: We will adjourn until nine o’clock
Monday morning.

Mr. Young: May we, before the jury is dismissed,
summon the witnesses to return Monday morning?

Mr. Dwight: While we are on that, I have been
looking at the record to find out if certain sub-

178 Ilene Warren vs.

(Testimony of John Kiehm.)
poenas have been served. They don’t seem to ap-
pear.

Mr. Young: (Naming witnesses standing in the
court-room) Lucey McGuire, Florence Billie Pen-
land, Edward Burns, Sergeant Wm. Odle, Sergeant
Charles W. Erpelding. Will your Honor please in-
struct these [138] witnesses to return Monday
morning at nine o’clock?

The Court: All you witnesses will report Monday
morning at nine o’clock without further order by
the Court.

Gentlemen of the Jury, you are under the same
instructions I gave you the last time not to discuss
this case with any outsider whatsoever. If anyone
attempts to approach you in an improper way, re-
port it to the Court.

Mr. Young: I believe we better include the pres-
ent witness on the stand.

The Court: Mr. Kiehm, you are also included in
the order. Court will adjourn until Monday morn-
ing at nine o’clock.

(A recess was taken until Monday, February 7,
1938, at nine o’clock a. m.) [139]

Honolulu, T. H., Feb. 7, 1938.

(The trial was resumed at 9 o’clock a. m.)

The Clerk: Criminal 14832 Territory of Hawaii
vs. Ilene Warren alias ‘‘Speed’’ Warren, for fur-
ther trial.

The Territory of Hawai 179

Mr. Young: Ready for the Territory.
Mr. Dwight: Ready for the defendant.
Mr. Young: Stipulate the jury and the defendant
are present.
The Court: Let the record so show. Proceed with
the trial.
JOHN KIEHM,

a witness called on behalf of the plaintiff, resumed
the stand and testified further as follows:

Direct Examination

(Continued )
By Mr. Young:
Q. Mr. Kiehm, will you please stand right
there? (Indicating position by the blackboard.)
The Court: Mr. Kiehm is under oath. Continue
with the direction examination.

By Mr. Young:

Q. Using this ruler, will you please draw from
your memory the floor plan of the house, as you
know it, what part of that house you know from
your memory, that is, the house of “Speed”
Warren that you have testified to?

(Mr. Young handed the witness a ruler and pen-
cil. The witness draws on a sheet of paper tacked
to the blackboard. )

Q. Using the top of the board, Mr. Kiehm, to
the the street that the front door faces, that is, the
front door faces that way, Muliwai Street will be
on [140] the top of the board.

180 Ilene Warren vs.

(Testimony of John Kiehm.)

A. (Drawing further) That is the plan of the
house I do know as Speed Warren’s house.

Q@. Will you step over on this side now, Mr.
Kiehm. Where is the front door located in that
house? Will you draw that ?

Mr. Dwight: May the record show I object to this
line of testimony upon the same grounds stated in
my objection to the testimony of the other wit-
ness ?

The Court: The record may so show.

By Mr. Young:

Q. Have you an ‘“‘F”’ there? A. Yes.

Q. Will you put a line indicating where the
door is? A. (Drawing).

Q. Now, which side is Muliwai Street?

A. Muliwai Street (writing).

@. You want to refer to this diagram?

A. Muliwai is here (indicating).

Q. Is that Muliwai up here (indicating) ?

A. Yes.

Q. Now, as you enter the front door, where was

the stairs with reference to this diagram ?

A. As you go in, this is the stairs leading to the
parlor (indicating).

Q. Leading upstairs? A. Upstairs.

@. And are these on your right or on your left
as you come in the door? [141]

A. Going up on the right.

The Territory of Hawai 181

(Testimony of John Kiehm.)

Q. That is the way you have it here (veferring
to diagram); as you come in this way, which way
would that stairs be?

A. (The witness draws.) On this side.

Mr. Dwight: Q. In other words, to save time,
Muliwai Street is on this side (indicating) ?

A. Yes.

By Mr. Young:

Q. Muliwai Street is on this side, going this
way (indicating) ? A. The stairs going up.

Q. You want to change the position of that
““H”’ then? A. Yes.

Q. Now, as you come in the front door, you say
that the stairs going upstairs to the parlor are on
the right? A. On the right, yes.

Q. That is these stairs here (indicating) ?

A. Yes.

Q. Will you mark that going to the parlor and
the other stairs go right straight ahead and go up
to the kitchen? A. Yes (marking).

Q. You have been up to that kitchen to fix the
stove, I believe you testified ? A. Yes.

Q. Now, Mr. Kiehm, I want you to mark on that
plan the place where the switch was located.

Mr. Dwight: I object as leading. He certainly is
not going to put testimony into this witness’ mouth.

[142]

The Court: Will you read the last question?

The Reporter: I didn’t get the last part of the
question.

182 Ilene Warren vs.

(Testimony of John Kiehm.)
By Mr. Young:

Q. Mr. Kiehm, will you please place an ‘‘X” at
the point where this switch was located that you
testified about, the place where this switch was lo-
cated with reference to the stairs ?

A. (The witness marks.)

Mr. Young: Let the record show that the witness
marks the spot with an ‘“‘X’’ at about the third
step, the third line.

@. Those lines indicate the steps in the rough
diagram ? A. Yes.

@. I believe you testified Friday that the switch
was 246 to 3 feet from the front door, is that cor-
rect ? A. Yes.

Q. That would be from point “‘X”’’ to the front
door would represent about three feet 2

(The witness did not answer audibly. )

Mr. Young: Mr. Kiehm, please speak louder.

The gentlemen of the jury have to hear you and
the Court. Just speak a little louder.

@. Do I understand, Mr. Kiehm, your testimony
is from the front door as you come in the switch is
located 2% to 3 feet from the door on the right-
hand side? That is correct? A. Yes.

Q. Approximately how far from the bottom of
the steps, [143] going up vertically, is the switch
located, to your best recollection ?

A. I would say about four feet.

Q. About four feet. Now, will you please tell us
what this square represents ?

The Territory of Hawai 183

(Testimony of John Kiehm.)

A. That square is the lower parlor.

Q. That square is the lower parlor. Will you
tell us where you put this transformer? Will you
mark a ‘‘T’”’ where you installed the transformer ?

A. Above this door (indicating on diagram and
marking).

Q. Above what door?

A. Above the door that leads into the parlor.

Q. What else was at that point where you put
the transformer ? A. There was a fuse plug.

Q. Anything else?

A. Yes, there was a small Bell transformer.

Q. Now, where is the back door in that house
located, do you know? Is this the only part of the
house that you are familiar with? A. Yes.

Q. You are not familiar with any of the other
parts of the house.

A. That door is somewhere around here (indi-
eating).

Q. Now, will you please draw—let me have the
erayons—with this red pencil the way that the
wires—vou testified you hooked the wires up to the
front door and the back door. Just trace the wires
the way you put them 1n, just roughly.

A. On this diagram?

Q. Yes, just the course of the wires. [144]

A. One wire led to the transformer.

Q. Just mark that.

A. One at the back and one going to the ground
(tracing with pencil). Just about here the two wires

184 Llene Warren vs.

(Testimony of John Kiehm.)
met a switch (indicating) and back again to the
transformer.

Q. Now, over on this side of the board, Mr.
kiehm, will just draw a. little larger diagram of
how the wires, roughly, were situated, that is, draw
the circuit, if you can. Mark the fuse plug, the
transformer and the switch. Show how the circuit
was connected.

The Court: Use a darker pencil. I believe you
will see better,

By Mr. Young:
@. Use this darker pencil. Thank you, your

Honor. A. (The witness draws on paper. )
Q. Now, you have the circuit starting at the
fuse plug? A. That is right.

@. That was connected with the outside line?
Mr. Dwight: Objected to unless he knows
definitely.

By Mr. Young:

Q. Do you know from your own knowledge?

A. I knew this was the same line that came in.

Mr. Dwight: I object to the question as incompe-
tent, irrelevant and immaterial.

Mr. Young: I submit to your Honor’s ruling.

The Court: Objection overruled.

Mr. Dwight: Save an exception.

The Court: Exception noted. [145]

The Court: Will you trace that red in black? It
is not visible at all. Trace over your red with black
on that diagram.

The Territory of Hawai 185

(Testimony of John Kiehm.)
A. (The witness retraces the red lines in black.)

By Mr. Young:
Q. You have the circuit starting at the fuse
here, is that correct (indicating) ? A. Yes.

Q. From there you have two wires going to the
switch? A. Yes.

Q. What kind of a switch was that?

A. Double-throw knife switch.

Q. Knife switch, double-throw ? A. Yes.

Q. You have two wires going to the trans-
former ? A. Yes.

Q. Could you draw approximately the size of
that transformer ?

Mr. Dwight: May it please the Court, may I re-
new my objection? ‘The further objection, that this
witness is to reproduce evidence by an actual draw-
ing of what this Court has suppressed. I object as
incompetent, irrelevant and immaterial.

The Court: The objection will be overruled.
There was no showing but what this was entirely
independent of any illegal search and seizure.

Mr. Dwight: Exception.

The Court: Exception noted.

By Mr. Young:

Q. From your memory of that transformer that
you put [146] in there, will you draw the approxi-
mate size of it to life scale’

A. (The witness draws.)

186 Ilene Warren vs.

(Testimony of John Kiehm.)

@. Now, this square or rectangle you have here,
what side of the transformer does that represent,
looking at it from the large side?

A. Looking straight ahead at the transformer.

@. What would be the other dimension? Draw
it from the other view.

A. (The witness draws on paper.) This is from
the side.

Q. From your recollection.

Mr. Dwight: Will the witness mark “side view’?
and ‘‘front view’’ and “top view’’?

The Court: And label what the object is itself.

A. Transformer.

Mr. Dwight: Write it in.

By Mr. Young:

@. Now, from your recollection of the measure-
ment of that, could you give us the inches wide and
long and thick?

A. I should say it is about 414 inches wide by 6
inches long; about two or three inches thick.

Q. Now, after the wires went to the trans-
former, you have some lines going out here (indi-
cating). Will you explain what they are, please?
Step over here so the jury can see.

The Court: Talk loudly.

A. This line goes to the ground (indicating).

@. And that is attached to this place that you
marked on the diagram the other day outside up
over where you put this point “X’’? [147]

A. Yes.

The Territory of Hawai 187

(Testimony of John Kiehm.)

The Court: On what exhibit?

Mr. Young: ‘‘G’’, your Honor.

Q. That is a pipe out in front of the house, is
that correct ?

A. Yes, and one leads to the front, a splice there
(indicating), and another line runs to the back.

Q. When you say ‘‘front door’? you mean the
door there on the other diagram? A. Yes.

Q. And this transformer that you testified to
was located above the door?

Mr. Dwight: Let the witness locate it, Mr.
Young.

By Mr. Young:

Q. You locate it.

A. This transformer was right above the door.
This wire leads to this front door and that wire
leads to the back door and the ground on the side
of the house (indicating on diagram. )

Q. Will you take the stand? Mr. Kiehm, looking
at these exhibits or pictures of the house on the
board, can you show us by any of those pictures
where the front door is located that you testified to
on this diagram?

A. This is the front door (indicating on

picture. )
Q. Pointing to Exhibit ‘‘D’’ in evidence. That
is the front door? A. Yes. |

Q. Pointing to that picture, on which side is the
stairs going up on the inside? [148]
A. This side going up (indicating ).

188 Ilene Warren vs.

(Testimony of John Kiehm.)

@. Indicating the right side of the picture. The
stairs that go to the kitchen, where do they go?

A. Right here (indicating).

Q. Now, just how did you attach these wires to
the front door, Mr. Kiehm?

Mr. Dwight: Objected to as already having been
asked and answered.

The Court: Objection overruled.

Mr. Dwight: Exception.

The Court: Exception noted.

A. The wire was soldered onto the front screen.

By Mr. Young:

@. How did it approach the screen, from which
side of the door?

A. The inside is on the right upper corner.

@. The right upper corner?

A. That is inside the house.

Q. Looking over into the house? A. Yes.

Q. May I put it this way: Was it on the side
where the hinges are on the door?

A. About an inch above the hinge.

@. About an inch above which hinge?

A. The upper hinge.

Q. That is where the wires cross from the wall
to the door?

A. That is where the wires cross from the wall
to the door.

Mr. Young: Excuse me just a moment, your
Honor. Your witness. [149]

The Territory of Hawai 189
(Testimony of John Kiehm.)

Cross Examination
By Mr. Dwight:
Q. Mr. Kiehm, have you talked to anybody
about your statement that you were to give in

Court? A. Ihave, to Mr. Young.

Q. You have, to Mr. Young. When did you talk
to Mr. Young?

A. I believe it was two weeks ago.

Q. Two weeks ago? A. Yes.

Q. And you had only one conversation with
him? A. Thad one at his office.

Q. Only once at his office?

A. At his office, yes.

Q. Did you talk to him at any other time?

A. TI did, outside at the hallway.

Q. Did you make any other statement to any-
body? A. Not that I know of.

Q. Didn’t you make a statement to the police ?

Mr. Young: If your Honor please, counsel is lay-
ing a foundation for impeachment. I submit the
foundation isn’t being laid. He must call attention
to inconsistent statements.

The Court: It is proper cross-examination, eoing
to his credibility. Objection overruled.

A. Yes, I did, to the police.

By Mr. Dwight:
Q. When did you make a statement to the

police?
A. I believe sometime last year; sometime in

last year.

190 Ilene Warren vs.

(Testimony of John Kiehm.)

@. In relation to the time that this police officer
was killed, was it before or after the police officer
was [150] killed ? A. It was after.

Q. It was after the police officer was killed?

A. Yes.

Q. Now, Mr. Kiehm, did you sign a statement
at the police station when you made this statement?

A. I did.

Q. That was the first statement you made con-
cerning this particular incident?

A. That is right.

@. And at the time that that statement was
made, did they show you certain electrical equip-

ment at the police station? A. Yes.
Q. That consisted of a transformer?
A. Yes.
Q. That consisted of some wires? A. Yes.
Q. And that consisted also of a switch?
A. Yes.
@. And they were the same articles that you

testified here on direct examination that you put
into the house? A. Yes.

Q. Now, Mr. Kiehm, what was the conversation
that you had with Mrs. Warren concerning this in-
stallation ?

A. That was in 1936. She drove up the shop
with Lou Rodgers and she asked me if I could in-
stall some kind of a device in the front door to keep
away soldiers.

The Territory of Hawai 191

(Testimony of John Kiehm.)

Q. If you could install a device on her front
door to keep away soldiers—Go ahead. [151]

A. Beeause they come there at all hours of the
night, pounding at the door.

Q. Yes.

A. So TI told her that a transformer would give
a shock. She asked me if I could have it installed.

Q. You told her the installation of a trans-
former and some wires would give them a shock ?

ae EE:

Q. Did she ask you if you would guarantee that
it would not kill or did you tell her that it would
not kill?

A. I vemember telling her that the shock in the
front door wasn’t strong enough to harm a person.

Q. You told her that the shock in the front door
wasn’t strong enough to harm a person ?

A. Yes.

Q. And then she asked you to install it, is that
correct ? A. Yes.

Q. And did you not tell the police in your
statement that you made that that equipment could
not kill? A. Yes, I did.

Q. And did you tell them that if the equipment
were put up, you would prove to them that it could
not kill? A. Yes.

Q. And when you first had your conversation
with Mrs. Warren, Mr. Kiehm, you told her that
you could put in an apparatus that would not harm
anybody ? A. Yes.

192 Ilene Warren vs.

(Testimony of John Kiehm.)

@. And that was the apparatus that you were
referring [152] to, the apparatus that you testified
here about? AL Thats) ried,

Mr. Dwight: Your witness, Mr. Young.

Redirect Examination
By Mr. Young:

@. Mr. Kiehm, evervthing you have testified to
here this morning is from your own memory of
what happened 2

A. Yes, from my own memory.

©. And what you put in the house? <A. Yes.

Q. And that was not influenced in any way by
what the police told you? A. No.

Mr. Young: May I be permitted

The Court: Are you going to introduce this as
an exhibit ?

Mr. Young: Yes, your Honoy.

Recross Examination

By My. Dwight:

Q. (To Mr. Young) Are you through? (No
response. )

Mr. Kiehm, you testified on cross-examination
that the police showed you this equipment ?

A. Yes.

Q. And asked you what you knew about it, isn’t
that correct ? A. Yes.

@. And then you started to tell them your
Story ; isn’t that what happened? [153]

The Territory of Hawau 193

(Testimony of John Kiehm.)

Q. Did they offer any immunity, if you told
them your story, that you would not be prosecution
for murder? Did they tell you that if you could tie
up Mrs. Warren, that you would not be prosecuted ?
Did they give you that assurance?

A. All Captain Hays told me was this: ‘We are
trying to get at the truth.”’

Q. What else?

A. And the exact words he said I have for-
gotten.

Q. Did he tell you that you wouldn’t have to be
worried; that you wouldn’t be pinched or prose-
cuted, if you told your story?

A. He said something like if I told the truth,
that I would be all right, I think it was.

Q. You would be all right; he gave you that as-
surance ? A. JI think he did.

Q. ‘Then you started to tell your story?

A. Yes.

Mr. Dwight: That is all.

Mr. Young: No further questions. May this be
received in evidence as Prosecution’s Exhibit ‘'J’’?

Mr. Dwight: Subject to my general objection, and
my further objection that this 1s a reproduction—
I refer to this section of the sketch of the wires, the
fuse, the switch, the transformer, the ground, the
front view of the transformer, the side view of the
transformer, are actual reproductions of evidence
that this Court ordered suppressed, or copies. Has
the Court ruled on it? [154]

194 Ilene Warren vs.

The Court: The objection will be overruled.

Mr. Dwight: May the Court reserve the ruling
because I want to submit authorities ?

The Court: The Court will enter this as Ex-
hibit “‘J’’ in evidence and reserve the ruling for
further authorities, which counsel may wish to pre-
sent at a later time.

Mr. Dwight: At this time I move to strike the
testimony of this witness on the ground it is in-
competent, irrelevant and immaterial; that it is
based upon information procured during an invalid
search and that this testimony tends to incriminate
the defendant under the Fifth Amendment and was
obtained in violation of the defendant’s rights
under the Fourth Amendment, and also on the fur-
ther ground that the testimony was procured in vio-
lation of law and I would like to argue the matter—
I will be very brief—in the absence of the jury.

Lhe Court: What authorities have you?

Mr. Dwight: I have the wire-tapping case where
Justice Brandeis goes to the

The Court: The jury will be excused during this
argument and will be called when completed.

(‘The jury retired from the court-room. )

The Court: I think we better take this up in
chambers.

Mr. Dwight: No, I think the proper method
would be to have the argument in court. [155]

Mr. Dwight: I only desire to cite three cases.
The first one is very brief. Since the Silverthorne

The Territory of Hawai 195

Lumber Company decision the first case I desire to
cite is that of Agnello vs. United States. I quote
from the Agnello decision and I quote from page
150 U. S. Law Ed., page 148. Apparently I will be
reading from your copy of the Supreme Court De-
cisions around page 23 or 24. I quote this:
(Reading )

“The essence of a provision forbidding the
acquisition of evidence in a certain way 1s that
not merely evidence so acquired shall not be
used before the court, but that it shall not be
used at all.’’

Now, Justice Brandeis in the wire-tapping case
eoes into the Silverthorne case rather thoroughly
and I read what he has to say.

The Court: What citation is that?

Mr. Dwight: Olmstead v. United States, 72 U. S.
Law Ed. 944. I begin to read from page 954 of the
decision or at page 474 in your Honor’s volume of
the decision. The Court will remember that the
wire-tapping case was a new situation which arose
as a result of tapping wires and obtaining informa-
tion while not on the premises of the defendant.
The Court was divided five to four. The majority
decision by Chief Justice Taft sustained the ad-
inissibility of the evidence upon the ground that
the 4th Amendment had not been violated, and that
the 4th and 5th Amendments sort of run together,
therefore there was no incrimination by the evi-

196 Ilene Warren vs.

dence. Justice Brandeis, [156] who made a most
thorough study of the question, contended that the
evidence was inadmissible because it was un-
ethically as well as illegally obtained and the four
justices agreed with Justice Brandeis. Since that
time the new wire-tapping case came to the atten-
tion of the Court only recently and I have it in the
advance sheets. It was decided on the 20th of De-
cember, 1937, Nardone vs. United States, 58 Su-
preme Court Reporter 275. There they held that
evidence obtained illegally or unethically . was
illegal, but I do want to read from page 952.

The Court: In the Olmstead case, page 950?

Mr. Dwight: In the Olmstead case at page 952.
Before going on to it, Mr. Justice Holmes said:
(Reading)

‘“My Brother Brandeis has given this case
so exhaustive an examination that I desire to
add but a few words. While I do not deny it, I
am not prepared to say that the penumbra of
the 4th and 5th Amendments covers the de-
fendant, although I fully agree that courts are
apt to err by sticking too closely to the words
of a law where those words import a policy
that goes beyond them’’,

and he agrees with Brandeis’ decisions, and basing
his decision upon the Silverthorne case Justice
Brandeis said this, speaking of the 4th and 5th
Amendments: (Reading)

The Territory of Hawai 197

‘When the 4th and 5th Amendments were
adopted, ‘the form that evil had theretofore
taken’ had been necessarily simple. Force and
violence were then the only means known to
man by which a government could directly ef-
feet self-incrimination. It could compel the
individual to testify—a compulsion effected, if
need be, by torture. It would secure possession
of his papers and other articles incident to his
private life—a seizure effected, if need be, by
breaking and entry. Protection against such
[157] invasion of ‘the sanctities of a man’s
home and the privacies of life’ was provided in
the 4th and 5th Amendments, by specific lan-
gsuage.”’

That is what I am driving at. The information
leading to the issuance of a subpoena and leading
to the calling of this witness has been unlawfully
secured. (Reading from Olmstead v. United States,
72 U. S., Law Ed. 944) And in this particular case,
by a witness—I am speaking both of the Rodgers
girl and this last witness—Miss Rodgers saw this
apparatus in there; Kiehm saw it and put Di sity
(Reading further from Olmstead v. United States,
72 U. S. Law Ed. 944) That is the basis of my ob-
jection. Any such use constitutes a violation of the
5th Amendment. I submit, may it please the Court,
under the last ruling, I might say the case goes on
and the minority opinion in that case holds that

198 Ilene Warren vs.

unethical evidence or evidence illegally obtained
could not be used. Then along came the Supreme
Court of the United States and they held definitely
that evidence obtained illegally cannot be used.
That is the last word from the Supreme Court of
the United States.

The Court: Will you give the volume?

Mr. Dwight: Volume 6 of the advance sheets at
page 250. May it please the Court, in view of the
subsequent cases, the Supreme Court has subse-
quently held this evidence couldn’t be used at all,
particularly in view of this decision in the Olm-
stead case. [I submit all of this evidence of Miss
Rodgers and this last witness is incompetent, [158]
irrelevant and immaterial, tending to incriminate
this defendant and violated her rights under the 5th
Amendment.

Mr. Young: Just briefly. I have nothing further
to add except as to what was said in regard to Miss
Rodgers and Kiehm. He is testifying on his own
information. The police found a man dead out on
the sidewalk. I submit there is nothing from this
man’s testimony that shows anything to connect him
with the illegal search. If your Honor will read this
last case, it is based upon a Federal statute.

Mr. Dwight: This last decision was based upon
a Federal statute and this Court held definitely
that evidence obtained illegally and unethically is
in violation of law.

The Court: Pass me just that advance sheet.

(Mr. Dwight handed same to the Court.)

The Territory of Hawai 199

Mr. Dwight: That is only on the question of
wire-tapping. Chief Justice Taft sustained it. They
hadn’t been on the premises.

The Court: In the first place, there 1s no evl-
dence at all to show in what manner Kiehm was
secured as a witness.

Mr. Dwight: Yes, there is testimony on Cross-
examination definitely points that out. On cross-
examination I asked him definitely. The Court will
recall that Lou Rodgers on her cross-examination
was asked by me if the police asked her [159]

The Court: I remember.

Mr. Dwight: (Continuing) —who put that ap-
paratus 1.

The Court: I am not talking about Kiehm’s
evidence.

Mr. Dwight: I am speaking of the evidence so
far, the answer of Miss Rodgers. She said she
wouldn’t answer first, then she said a garage man.
Kiehm’s testimony on cross-examination was that
they showed him this apparatus, show him this ap-
paratus and asked him if he put that in ‘‘Speed”’
Warren’s house and that was the first thing they
did. Then he said yes, then he went to work and
described how he put it in. That is the record.

(A brief recess was taken. )

The Court: The Court has emphatically, amc
believe clearly ruled that this evidence—— |

Mr. Young: Does your Honor want to make this
ruling in the presence of the jury ?

200 Ilene Warren vs.

The Court: The Court has already emphatically,
and I believe clearly, ruled that this evidence seized
in the manner that it was by the police, was im-
proper, illegal and in violation of the constitu-
tional rights of the defendant under the 4th and 5th
Amendments thereof and that evidence has been
suppressed, but in the Silverthorne case it was
stated and held that that evidence is not sacred nor
imaccessible. The question resolves itself into
whether or not this evidence of witness Kiehm and
witness Rodgers was dependent upon this [160]
illegal search and seizure. If it was, it would be
stricken by the Court and excluded from the record.
The Court believes that is the test in the cases cited,
as far as the Court has read them in every case.
Ihe Court has read the testimony, for instance, in
the Flagg case, 233 Federal page 481, where letters
were illegally seized, and there was an illegal search
and seizure. The Federal attorney studied that evi-
dence for a period of three years and secured sec-
ondary evidence from the evidence illegally seized.
The Court held, of course, that that secondary evi-
dence was just as much a violation of the constitu-
tional rights as the primary evidence, where an
officer will gain information, for instance, in mak-
ing copies of papers or gain evidence of other ap-
paratus or gain leads from the illegally seized
evidence. These cases have all been examples where
the evidence sought to be introduced in the trial
of the defendant was gained solely from the illegal

The Territory of Hawai 201

evidence and entirely dependent upon that illegal
evidence. In the case at bar the Court finds that the
evidence of Lou Rodgers was not in any sense of
the word dependent upon the seized illegal evidence.
She was an inmate of the house, was seen living
in the house by the police a year prior to the death
of Officer Lee and her evidence was based entirely
upon her independent knowledge. Certainly her
evidence is not in any sense of the word dependent
upon illegal seizure by the police. The mere fact
that she was given the opportunity to [161] see and
look at the illegally seized evidence does not bring
it in within the rule of the authorities cited. Her
evidence was primarily based upon her independent
knowledge of the equipment which she saw in-
stalled. In the course of her examination by the
police upon her independent knowledge, it was dis-
covered by the police that witness Kiehm was the
man she saw installing the equipment. This source
was, in itself, entirely independent of the illegal
search and seizure and consequently it is proper for
the prosecution to introduce witness Kiehm and is
not a violation in any respect of the defendant’s
constitutional rights. Witness Kiehm also testifies
from his independent knowledge, free and clear of
the illegal search and seizure. His knowledge of how
the electrical equipment looked and how it was put
‘n and installed was based upon his actual experl-
ence and personal knowledge thereof. Here again
the mere fact that he was shown that equipment,

202 Ilene Warren vs.

which had been illegally seized, is not enough to
bring his independent personal knowledge of that
equipment within the ruling of this Court in respect
to the illegally seized evidence, as was definitely
stated in the Silverthorne case in 251 U. S. at page
392; (Reading)
“Of course this does not mean that the facts
thus obtained become sacred and inaccessible.
If knowledge of them is gained from an inde-
pendent source they may be proved like any
others, but the knowledge gained by the Gov-
ernment’s own wrong cannot be used by it in
the way proposed,’ [162]

which in that case was copies of papers legally
seized. Here the evidence of Rodgers and Kiehm
was gained from an independent source and that
may, therefore, be proved like any other evidence
based in this case upon their personal and inde-
pendent knowledge and clearly not solely gained by
the government’s own wrong nor dependent upon
that wrong. Consequently, the Court overrules the
defendant’s motion to strike this evidence.

(The jury returned to the court-room and jury
box.)

The Court: Mr. Reporter, Mr. Clark, will you
read the Court’s decision overruling defendant’s
motion ?

(The reporter read as follows:)

“The Court: The Court has already em-
phatically, and I believe clearly, ruled that this

The Territory of Hawai 203

evidence seized in the manner that it was by
the police, was improper, illegal and in viola-
tion of the constitutional rights of the defend-
ant under the 4th and 5th Amendments thereof
and that evidence has been suppressed, but in
the Silverthorne case it was stated and held
that the evidence is not sacred nor inaccessible.
The question resolves itself into whether or not
this evidence of witness Kiehm and witness
Rodgers was dependent upon this illegal search
and seizure. If it was, it would be stricken by
the Court and excluded from the record. The
Court believes that is the test in the cases cited,
as far as the Court has read them in [163]
every case. The Court has read the testimony,
for instance, in the Flagg case, 233 Federal
page 481, where letters were illegally seized,
and there was an illegal search and seizure. The
Federal attorney studied that evidence for a
period of three years and secured secondary
evidence from the evidence illegally seized. The
Court held, of course, that that secondary evI1-
dence was just as much a violation of the con-
stitutional rights as the primary evidence,
where an officer will gain information, for In-
stance, in making copies of papers or gain
evidence of other apparatus or gain leads from
the illegally seized evidence. These cases have
all been examples where the evidence sought to
be introduced in the trial of the defendant was

204

Ilene Warren vs.

gained solely from the illegal evidence and
entirely dependent upon that illegal evidence.
In the case at bar the Court finds that the
evidence of Lou Rodgers was not in any sense
of the word dependent upon the seized illegal
evidence. She was an inmate of the house, was
seen living in the house by the police a year
prior to the death of Officer Lee and her evi-
dence was based entirely upon her independent
knowledge. Certainly her evidence is not in
any sense of the word dependent upon illegal
seizure by the police. The mere fact that she
was given the opportunity to see and look at
the illegally seized evidence does not bring it
in within the rule of the authorities cited.
Her evidence was primarily [164] based upon
her independent knowledge of the equipment
which she saw installed. In the course of her
examination by the police upon her independent
knowledge, it was discovered by the police that
witness Kiehm was the man she saw installing
the equipment. This source was, in itself. en-
tirely independent of the illegal search and
seizure and consequently it is proper for the
prosecution to introduce witness Kiehm and is
not a violation in any respect of the defend-
ant’s constitutional rights. Witness Kiehm also
testifies from his independent knowledge, free
and clear of the illegal search and seizure. His
knowledge of how the electrical equipment
looked and how it was put in and installed was

The Territory of Hawai 205

based upon his actual experience and personal
knowledge thereof. Here again the mere fact
that he was shown that equipment, which had
been illegally seized, is not enough to bring his
independent personal knowledge of that equip-
ment within the ruling of this Court in respect
to the illegally seized evidence, as was definitely
stated in the Silverthorne case in 251 U. 8. at
page 392, (Reading)

‘Of course this does not mean that the
facts thus obtained hecome sacred and inac-
cessible. If knowledge cf them is gained from
an independent source they may be proved
like any others, but the knowledge gvained by
the Government’s own wrong cannot be used
by it in the way proposed,’

which in that case was copies of papers illegally
seized. Here the evidence of Rodgers and Kiehm
was gained from an independent source and
that may, therefore, be proved like any other
evidence [165] based in this case upon their
personal and independent knowledge and
clearly not solely gained by the eovernment’s
own wrong nor dependent upon that wrong.
Consequently, the Court overrules the defend-
ant’s motion to strike this evidence.”’

Mr. Dwight: May I save an exception to the
Court’s ruling?
The Court: Exception saved and noted.

206 Ilene Warren vs.

Mr. Dwight: On the grounds stated, and I renew
my objection all the way through, including this
witness, your Honor, on the same ground.

The Court: All right. [166]

ee

LUCY McGUIRE,
called as a witness on behalf of the plaintiff, being
first duly sworn, testified ag follows:

Direct Examination
By Mr. Young:

Q. What is your name, please?

A. Luey McGuire.

Mr. Young: Miss McGuire, will you speak up a
little louder ?

@. What is your name, please?

A. Luey McGuire.

Q. Just a little louder. Where do you live, Miss
McGuire ? A. Waialua.

Q. What place at Waialua?

A. Portuguese Camp.

Q. Just a little louder. Do you know a person
by the name of Ilene Warren also known as
‘Speed’? Warren ? A. Yes.

@. Is she here in the court-room ?

A. Right there in the white hat (indicating the
defendant).

Mr. Young: Let the record show the identifica-
tion.

The Court: Let the record so show.

The Territory of Hawa 207

(Testimony of Lucy McGuire.)

By Mr. Young:

Q. How long have you known her?

A. About a year now.

Q. How did you become acquainted with her?

A. I was working for her.

Q. When did you work for her? [167]

A. Either in July or August, 1936.

Q. Hither in July or August, 1936?

A. Yes.

Q. Just a little louder, please.

A. It was either in July or August 1936.

Q. What did you do for Mrs. Warren at that
time ?

A. I cooked, cleaned the house and did her laun-
Cniey;.

Q. Who else was living there at that time?

Mr. Dwight: Objected to as incompetent irrele-

vant and immaterial.
The Court: Objection overruled.

Mr.

Dwight: Exception.

The Court: You can answer.

A. Lou Rodgers and two other girls.
By Mr. Young:
Q. Do you know the names of the other girls?
A. No.
Q. Was Mrs. Warren living there then?
“%, Wes.
Q. Anyone else? iy Wo.
Q. Mrs. Warren, yourself, Miss Rodgers and

two other girls? A «Yes.

208 Ilene Warren vs.

(Testimony of Lucy McGuire.)

Mr. Dwight: Just a moment. She was not living
there.

A. Yes, I had my own room.

By Mr. Young:
Where was your room located 2
Downstairs. [168]
How many bedrooms are there downstairs?
Four bedrooms.
You look at these exhibits on the board up
ees Miss McGuire, Exhibits ‘“D’’, ““E’’, ““F”? and
““G”’ in evidence (indicating), and tell me whether
or not you recognize the house there?

A. 'That is her house there (indicating).

@. Are you acquainted with the upstairs and
the downstairs of that house? A. Yes.

Q. Are you familiar with the rooms?

A. Yes.

@. Do you know whether or not a stairs leads up-
stairs from downstairs ? A. Yes.

Mr. Dwight: I object to counsel leading the wit-
ness, not only by words but by signs.

The Court: Objection will be sustained.

2O>eore

By Mr. Young: |

Q. Will you take this ruler? (Handing same to
witness.) Will you tell me whether or not there was
any stairs leading from the bottom floor of that
house to the upstairs?

A. Yes, one going upstairs.

Q. One going upstairs?

The Territory of Hawau 209

(Testimony of Lucy McGuire.)

A. Yes, there is another one going in the
Kitchen.

Q. Where does that go to?

A. To the living-room upstairs.

Q. Are there any windows in that room that
faces Muliwai Street ?

A. Yes, right here (indicating) and two win-
dows to the [169] living-room.

Q. Will you state whether or not there are win-
dows at the top of the stairway ?

A. Right here (indicating). You could see out-
side from that window.

Q. You can look through that window and see
who is downstairs at the front door?

A. Yes, sir.

Q. Have you ever done that yourself ?

A. Yes.

Q. Have you ever seen ‘“‘Speed’’ Warren look
out that window? A. Yes, a lot of times.

Q. Now, do you know of your own personal
knowledge what that house was used for?

Mr. Dwight: Objected to as incompetent, 1rele-
vant and immaterial, tending to bring the character
of this defendant directly in issue. I submit that
tends to bring the character of the defendant in
issue. The Court has already ruled it is not admis-
sible. |

Mr. Young: On several occasions this same matter
has come up. Your Honor knows from the offers
of proof what the exact purpose of this evidence 1s

PANY Ilene Warren vs.

(Testimony of Lucy McGuire.)
for, not to cast any reflection on the character of
this defendant.

Mr. Dwight: I don’t care. This Court has to de-
termine what the effect of that testimony is. If it
is bringing the character of the defendant into issue,
then it is inadmissible. He does not [170] even have
to make an opening statement to the jury. This
Court has to determine the question of the effect of
any evidence. Certainly this Court cannot say that
testimony and the testimony of the witnesses the
other day does not tend to bring in issue the char-
acter of the defendant.

The Court: The Court overrules the objection.
The purpose of the testimony is not to bring in
issue the character of the defendant. The purpose
is as already stated. The Court overrules the ob-
jection.

Mr. Dwight: May I have an exception ?

The Court: You may have an exception.

Mr. Young: Instruct Mr. Dwight not to disturb
me.

Mr. Dwight: I apologize, Mr. Young.

(The last question was read.)

The Court: Answer the question.

Mr. Dwight: Just a moment. I have another
ground, calling for the conclusion of this witness.
Maybe that is a substantial ground, calling for the
conclusion of this witness.

The Court: Have you anything to say on that?

Mr. Young: I submit it, your Honor.

The Territory of Hawai yy ts)

(Testimony of Lucy McGuire. )
The Court: The Court will sustain the objection,
calling for a conclusion of the witness. Objection

sustained.
By Mr. Young:

Q. Miss McGuire, you testified that some girls
lived there? A. Yes. [171]

Q. What type of work, what were the girls do-
ing there?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial. The character of the girls 1s
not before the Court. It is not an issue in this case.

The Court: The Court will overrule the objection.

Mr. Dwight: I save an exception.

The Court: Exception may be noted. This answer
will be based upon what you saw and what you
know of your own knowledge.

Mr. Dwight: And also again calling for the con-
clusion of this witness.

By Mr. Young:

Q. Will you tell us what you saw in that house ?
That is all we want.

A. Well, there were a lot of soldiers coming n
to see the girs.

Q. What did the soldiers do, if anything; after
they got through what did they do?

A. They went to see a eirl; the girls would take
them in the room. The gitl would come back and
give that money; 80 in the room with soldiers, stay
three or four minutes and come out.

2A Ilene Warren vs.

(Testimony of Lucy McGuire. )

@. Would the girls be in the rooms alone with
the soldiers? A. Yes.

@. What did you do with this money? Did they
give you the money?

A. Sometimes they gave it to me. [172]

Mr. Dwight: Objected to as leading.

The Court: Objection overruled.

Mr. Dwight: I will save an exception to the
Court’s ruling.

The Court: Exception may be noted.

Mr. Dwight: Q. Sometimes they gave it to you?

A. Yes, to put away in the box.

By Mr. Young:

@. Did you ever see them give it to anybody?

A. Sometimes to ‘“Speed’”’ Warren.

@. What did you do with the money they gave
you?

A. We had a box with the girl’s name on it.

@. What did you do with the money when they

gave it to you?

A. Put it in the box so that the girls could have
it when ‘‘Speed’’ came.

Q. Did you ever give any money to ‘‘Speed’’
Warren ?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial and as leading.

The Court: Objection overruled.

A. Sometimes I gave it to her ; sometimes JI
put it in the box. When she wasn’t there, I would
always tell her.

The Territory of Hawa 213

(Testimony of Lucy McGuire. )

Q. Now, what rooms im the house were used
for this purpose that you testified to?

A. Downstairs.

Q. The upper portion of the house, did any
girls go up there?

Mr. Dwight: Objected to as leading, incompetent,
irrelevant and immaterial. I will waive [173] the
oath and will counsel testify, if the Court is going
to rule this way. I certainly do object to this testi-
mony, continually putting the questions, the facts
into the witness’ mouth and calling for an answer
‘VYes’’. I submit that is a leading question. Leading
questions are incompetent.

The Court: The Court will sustain the objection
to the form of the question.

By Mr. Young:
Q. You testified that the rooms on the bottom
floor were so used? A. Yes, trick rooms.
Q. Were any other rooms in the house so used?
A. No, not upstairs, just downstairs.
Q. What did you testify they were called?
A. Trick rooms.
Q. Who called them that?
A. ‘Speed’? Warren.
Q. Now, during the time that you lived there,

while Lou Rodgers was there, did you ever notice
anything unusual about the doors in that house?
A. Not until I, myself, was going to throw the
garbage out one night. It was raining; my hands
were wet; I touched the door and got a shock.

214 Ilene Warren vs.

(Testimony of Lucy McGuire.)
Mr. Dwight: Can I have that answer?
(The last answer was read. )

By Mr. Young:

Q. What door was that, that you touched?

A. The front door. [174]

@. How did you touch it? Will you illustrate?

A. Well, there is a little knob there. I was just
going to hold it and got shocked.

Q. You touched the knob? A. Yes.

Q. Just put one hand on it?

A. Yes, I had to hold the garbage with the
other.

Q. Did you have any conversation with ‘*Speed”’
Warren about that incident?

A. She was upstairs. I told her; she started
laughing and told me not to touch the door. She
sald it was loaded with electricity. She told me
about the switch, where it was and everything.

Q. Where was the switch 2

A. Right by the side of the door.

Q. Did she point to the switch?

A. She told me if I turned it all the house would
be all loaded with electricity.

@. Did she tell you what that switch was for?

A. She said to scare the soldiers and in case of
a raid.

Q. She said to scare the soldiers and in case of a
raid? A. Yes.

Q. What else did she say, if anything ?

The Territory of Hawai 215

(Testimony of Lucy McGuire.)

A. That is all I know.

Q. Did she ever give you any instructions as to
what to do in case of a raid?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial. [175]

The Court: Objection overruled.

Mr. Dwight: Exception.

The Court: Exception noted.

A. Yes, she told me in case of a raid to call
her lawyer up and he would know what to do.

Mr. Dwight: You mean after you were pinched.

By Mr. Young:

Q. Now, during the time you lived there, do you
recall—I will withdraw that question. May I have
just a moment, your Honor? Did ‘‘Speed’’? War-
ren show you anything else but the switch?

Ves:

What else did she show you?

Well, I knew where the transformer was.
Where was the transformer ?

_ In the door downstairs.

Mr. Dwight: I move to strike that answer as
irresponsive to the question.

The Court: Objection overruled.

(The last question and answer were read. )

Mr. Dwight: That is the question and answer Li
take an exception to.

>rOPOo>

216 Ilene Warren vs.

(Testimony of Lucy McGuire.)
By Mr. Young:

Q. This switch, with reference to the stairway,
Which stairway and what part of the house was this
located ?

A. One going upstairs to the living-room.

Q. Would that be on the righthand side, if you
are going upstairs to the living-room?

A. It was on your right side.

@. And what part of the house was it attached
to? [176]

@. Right by the door? A. Yes.

Q. Was it on the door itself?

A. No, not on the door but on the side.

@. Will you step over to this door by his Honor
and illustrate where it was with relation to the
door, if your Honor doesn’t mind 2

A. Coming in here (indicating), it was just in-
side here.

@. Where you have indicated.

Mr. Dwight: Indicating a point just even with
the knob, indicating about four feet (from the
floor).

By Mr. Young:

Q. Now, did anyone else come there besides gol-
diers, that you know of ?

Mr. Dwight: Objected to as leading.

The Court: Sustained.

By Mr. Young:
@. Who came to this house during the time you
worked there?

The Territory of Hawau oi

(Testimony of Lucy McGuire.)
A. Soldiers was the only ones allowed in.
Q. Did they come regularly or did they come

at any special time? A. They came regular.
Q. Regular? i eS
Q. Did you ever touch this switch at any time
you were in this house? A. No.

Mr. Dwight: Objected to as already asked and
answered, incompetent and irrelevant. fale

By Mr. Young:

Q. Did you ever touch this switch?

A. No.

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial

The Court: Objection overruled.

By Mr. Young:

Q. What part of this house did ‘‘Speed’’? War-
ren generally frequent while you were there ?

A. Beg pardon?

Q. What part of this house did she usually stay
in? A. Upstairs.

Q. Now, while this was going on downstairs
that you have testified to by the soldiers, did you
have any particular duties to perform while these
soldiers were downstairs with the girls?

A. No, I was most of the time—I was upstairs
most of the time. 7

Q. While these people were in there, did you
have any special thing to do?

218 Ilene Warren vs.

(Testimony of Lucy McGuire.)

A. When she wasn’t there, she would tell me to
go and knock on the door when fifteen minutes were
over.

Mr. Dwight: May I have my same objection and
exception to this line of testimony ?

The Court: You may. Let the record go show.

By Mr. Young:

Q. Now, with reference to the front of the house,
Miss McGuire, will you state what kind of walls
there are near the front door? Did you get my
question? With reference to the front door here
(indicating), can you state what [178] kind of walls
are on both sides of that door, what they were made
of, what material? A. I don’t remember.

Q. You don’t recall whether there was a wooden
wall on each side? Was it a sereen or what?

Mr. Dwight: I object as already asked and an-
swered, being very leading.

Mr. Young: Read the last question.

(The last question was read.)

A. On this side there was a screen (indicating).

Q. Will you point exactly where that screen
was ?

A. On this side there was a screen (indicating).

Mr. Dwight: The witness indicates the left side
of the house.

A. Right here by the door there is a screen (in-
dicating) ; here is all wall (indicating).

The Territory of Hawa 219

(Testimony of Lucy McGuire.)

By Mr. Young:

Q. That is a wood wall? A. Yes.

Q. Do you recall whether or not that screen 1s
open or covered? A. Well, it is open.

Q. It is to the left of the door? A. Yes.

Q. Could you see in the house or out of the
house through that, just looking at it?
A. No, she had a cloth over there.

Q. She had a cloth over there? A. Yes.
Q. Is that the cloth on the outside of the house
or inside? [179] A. Inside.

Mr. Young: No further questions. Your witness.

Cross Examination

By Mr. Dwight:
How long did Lou Rodgers live in the house?
I don’t know.
You don’t know when she left?
She left on August 4th.
Are you sure? A. Yes.
Who gave you that date?
Because I was there at the time.
How did you come to the conclusion that it
was gies 4th?

A. Well, I know for sure. I was there at the
time.

Q. You were there at the time that she left?

A. Yes.

Q. And you started to work for ‘‘“Speed’’ 1
June or July; that is right? A. Yes.

OPornPpore

220 Ilene Warren vs.

(Testimony of Lucy McGuire.)

@. Sometime after you started working there
Lou Rodgers left, didn’t she? A. Yes.

Q. Now, did Lou Rodgers tell you that it was
August 4th?

A. No, I didn’t talk to Lou Rodgers.

@. How did you come to that date?

A. Because I know it.

Q. Definitely sure about it, August 4th. Did
she [180] come back and move in?
No, she did not come back.
You saw her leave? A. Yes.
All right. Who did she leave with?
By herself.
At day or night time?
She left in the night and did not come back
no more.

Q. She didn’t come back, just went off on a
drunk ?

A. No, she didn’t go on a drunk. She just went
to her own house.

Q. She had another house?

A. She had her own place. She had a house,
still she was staying with ‘‘Speed’’.

Q. Now, when did you leave ‘‘Speed’s’’ employ?

A. March 15th.

POPOO>D

Q. 1937? A. 1937.

Q. How did you happen to give your statement
in this case? A. Because they came for me.

@. Who came for you? A. Policeman.

Q. A policeman in company with whom?

The Territory of Hawa 224

(Testimony of Lucy McGuire. )
A. By himself.
Q. You were taken down to the Police Station?

A. Yes.
Q. You were questioned down at the Police
Station ? A. Yes. [181]

Q. Do you remember what date that was?

A. No.

Q. Do you remember the date when the man
died up there? Was it after that date?

A. It was after that, yes.

Q. You know how many days after?

A. No.

Q. You went down to the Police Station ?
A. Yes.

Q.

And did they show you a lot of wire and
things down there,—Captain Hays?

ue No, just the door.

Q. They showed you a door. Show you some
wire ? A. No.

Q. They didn’t. They asked you about that door?

A. That is the way.

Q. What was the first question they asked you?

A. I don’t remember.

Q. You don’t remember. So they showed you
this door? A GES

Q. Then they started to ask you? fe, Wes.

Q. They asked you what you knew about that
door? ee ces:

Q. They asked you if you knew who fixed up
that door? A. Yes, but I don’t know.

222 Ilene Vuarren vs.

(Testimony of Lucy McQiire.)

Q. You don’t know fy ~No

Mr. Young: I objec to this line of testimony.
The proper procedure 1 0 ask her. [182]

The Court: It is.

(The last question ancanswer were read.)

By Mr. Dwight:

Q. Then they began o ask vou about a switch?
A. Yes.

Q. Then you told thm about a switch?

A. Yes.

Q. Then they askedyou about a transformer?

A. No, I already kn@ that.

Q. They didn’t ask ou about a transformer?

& No.

Q. They asked you fhere the switch was?

A. Yes.

Q. Did they show bu a switeh? A. No.

Q. What else did thy ask you about?

A. It has been so lag T don't remember.

Q). Oh, I see. Did Gey ask vou anything about
the window upstairs? A. No, not at the time.

Q. Not at the time He asked you about that
over here, Mr. Young

A. No, I told him self,

Q. <All right. Hoy did you
window ?

A. ‘There is a screh; vou o
look out.

The Territoy of Hawass ss

jmony Me(hire. )

(Testimon) of Luey
Q. In other words, thre is @ sereen; os have
Jke our head out ated that &

to open the sereen, yM
the only way you eh

Q. You can ee it warding inate with the

screen closed ? [183] A. Ne
Q. You have te pike yur heal out f
A. Yes.

Q. When you suid: any birwet exaraination, Mose
McGuire, that you saw La Readers look cast of the
window,.—she stnek her bad ont abe workd have
to open the sereen and stk her head wat and Jem
down? A. Yee

Q. Same way with Mr Warren? A. Vee

Q. Now, you used the epresion i hero—I will
withdraw that question, "Ot, spent fost of your
time upstairs? You were Mins Warren's mand ?

A. Yee

(). You said sore Linge hat a lnvx, reat bees 7

A. Yes.

Q. You said they tad Gtnes an them f

A. Yes,

Q. Yon put some monn there t A. Yeu
Q. How, how many tite have you been bitten
by that door? A. One.

Q. And vou say it Was dining hard #
A. Yes, it was rainounw.

224 Ilene Warren vs.

(Testimony of Lucy McGuire.)
Q. It had been raining hard. When it rains
hard the [184] water runs down?

A. It is level; the water can get in.

Q. It was wet that night? nae Yios:

@. You touched the door; you got a shock?

A. Yes.

@. You say Mrs. Warren told you that that was
put there to scare away the soldiers? A. Yes.

@. Did she say what kind of soldiers, drunken
soldiers or sober soldiers?

A. Drunken soldiers.

Q. Have you ever had any trouble down there
with drunken soldiers ? A. Sometimes.

@. She also told you that in ease you were
raided, if she was arrested, to telephone to the
lawyer ? A. Yes.

@. That is all she said, “He would know what
WOnaan 22 A. Yes.

@. Now, when you got the shock you say Mrs.
Warren started laughing and said, ‘‘Don’t touch
the door’’. Did she tell you anything else ?

A. She said it was loaded with electricity.

(). You touched it and got shocked ?

A. Yes, I did.

Mr. Dwight: No further questions.

Redirect Examination
By Mr. Young:
Q. Now, Miss McGuire, when did you leave the
employ [185] of ‘‘Speed’’ Warren?
A. March 15th.

The Territory of Hawai 225

(Testimony of Lucy McGuire. )

Q. What year? A. 1937.
Q. You have testified that Lou Rodgers left
there on August 4th? A. Yes.

Q. Now, was it before August 4th or arter that
you received this shock?

A. It was before; Lou Rodgers was still there.

Q. How long before? A, Sieame not sure.

Q. Just give us your idea. How long before?

A. It was about two or three weeks.

Q. It was about two or three weeks before Aug-
ust 4th that you received this shock?

A. Yes.
Q. Do you know whether or not—Do you know
John Kiehm? A. Yes.

Q. Had you seen him around that house at any
time ? A Maes:

Q. Did you ever see him do any work ?

A. He came to do some work there.

Mr. Dwight: If counsel wants to reopen his
direct examination, I will consent.

The Court: You wish to reopen your direct?

Mr. Young: Yes, with your Honor’s permission.

Q. What did you see John Kiehm do, if any-
thing around the house?

A. He came to fix the door bell, and he fixed
something [186] in the back door. I don’t remem-
ber what it was. |

Q. Was that before you received the shock?

A. I veceived the shock already.

Q. Then he came?

226 Ilene Warren vs.

(Testimony of Lucy McGuire.)

A. Yes, he fixed the door bell.

@. Did you ever get a shock after that?

A. No.

Q. Are you sure about that? A. Sure.

Q. Will you tell what lawyer it was?

Mr. Dwight: I will admit it. I have been her
lawyer for eleven years, if counsel wants to know.

By Mr. Young:
@. You have testified that ‘“Speed’’ had to push
the wire screen out? A. Yes.

Q. Did she do that often?

A. On paydays mostly.

Q. Why did she do that?

Mr. Dwight: Objected to as calling for the con-
clusion of the witness.

The Court: Objection sustained.

By Mr. Young:

Q. Why did she do that?

A. Just to see if they were soldiers. If they were
not soldiers, they weren’t allowed in the house.

Q. What was the procedure when someone came
to the door? What would happen when someone
came to the door?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial. [187]

Mr. Young: It is very relevant.

The Court: Objection overruled.

Mr. Dwight: Exception.

The Territory of Hawai 227

(Testimony of Lucy McGuire. )

By Mr. Young:

Q. What would take place when some soldier
came to the door, some man?

A. We would open the door, let him in and take
him into the reception room downstairs and ask
him if he wanted to see a girl.

Q. When a man first came to the door

A. Because they ring the door bell.

Q. (Continuing) where would you look out from,
from the window?

A. Sometimes she looked out the door, just
looked out the door.

Q. If it is a soldier, you would let him in?

ie Tees.

Q. Now, everything that you have told us here is
what you remember of the house, what you know,
what you told us here? AN 2S,

Q. Based on your own memory? A. Yes.

Myr. Young: No further questions.

Recross Examination
By Mr. Dwight:

Q. After Lou Rodgers left ‘““Sneed’’—Where did
you go to work after you left Mrs. Warren? Where
did you go to work?

A. When I left ‘‘Speed’s’’, she didn’t pay me.
T didn’t have any money. I went over to Lou’s. [188]

Q. By ‘‘Lou’s’”’ you mean Lou Rodgers?

A, Yes.

228 Llene Warren vs.

(Testimony of Lucy McGuire.)

@. When did you move in with Lou Rodgers?

A. March 15, 1937.

Q. You are still with Lou? A. No.

Q. When did you leave Lou?

A. June 17th.

Q. You left Lou Rodgers on June 17th?

A. Yes.

@. And while you were with Lou Rodgers, did
you talk this case over with her? veeeNie?

@. And you want this Court and jury to believe
that you know definitely that Lou Rodgers left on
August 4th? You have your own independent mem-
ory of that date, eh? A. No.

@. Where did you get that August 4th from?

A. Lou Rodgers told me, yes.

Q. Exactly. Lou Rodgers told you when you
came into Court?

A. Lou Rodgers left on August 4th.

Q. That is the only thing you talked about?

A. Yes.

Q. You didn’t talk about this electrical ‘equip-
ment ? A. No, I already knew about it.

Q. Did you refresh your memory with Miss
Rodgers ? A. No.

Q. You didn’t talk about it at all? A. No.

[189]

Q. And what was Lou Rodgers doing down in
that house while you were there living with her?

A. She was one of ‘‘Speed’s’’ girls.

The Territory of Hawai 229

(Testimony of Lucy McGuire.)

Q. ‘Speed’s’? what? I mean after she moved
out, when you were down there at her house. What
was she doing?

A. Same thing as ‘‘Speed’’ was going.

Q. Operating a house of prostitution ?

A Nees:

Q. She was arrested while you were there ?

A. I don’t remember.

Q. You don’t remember. Did you talk to any-
body else besides Lou Rodgers about this case?

A. No.

Q. Nobody. You have already told me about talk-
ing to the police. Just the police?

A. They brought me to the police headquarters.
Q. Then you talked to Mr. Young?

A. Yes.

Q. Then you talked to Lou Rodgers?

A. Yes.

Q

. Have you seen Lou Rodgers since she testi-
fied the last time she was in?

A. She left; I haven’t seen her.

Q. Did you talk to her out here? Ae Wes:

Q. Did you talk about her testimony out here?

A. No, we didn’t talk about this case or what
she said. We was told not to talk about it. A fellow
told me not to talk about it.

Q. Who was that man? [190]

iy. Ghile isnt Were:

Q. You mean somebody that works for the Pub-
lic Prosecutor’s Office?

230 Ilene Warren vs.

(Testimony of Lucy McGuire.)

A. I don’t know who he is. He told us not to
talk about what happens in here.

Mr. Dwight: TI think that is all.

Redirect Examination

By Mr. Young:

@. This was June 1937 that you left there—TI
mean you left Lou Rodgers place? A. Yes.

Q. June last year? A. Yes.

Q. Before the death of this man?

A. Yes, I went down to Haleiwa and worked.

(). Have you worked for Lou Rodgers since that
date? A. No.

Rerecross Examination
By Mr. Dwight:

Q. When did you work for Mrs. Warren ?

A. In July or August.

Q. Of what year? A. 1936.

Q. 1936? A. Yes.

Q. When did you leave? A. 1937.

Q. 1937? A. 1937,

Q. What month? [191] A. March 15th.
@. That was before this accident happened out

there ? A. Yes.

Q. And you were working for Lou Rodgers
when the accident happened ?

A. No, I was down Haleiwa working.

@. Now, when did you talk to Lou Rodgers about
this August 4th, the date that she left? When did
you talk?

The Territory of Hawai 231

(Testimony of Lucy McGuire. )

A. The other day in here she just told me.

Q. The other day in here. That was after Lou
Rodgers had testified in this trial ?

A. She didn’t say anything; she was told not to
talk about it.

Q. Then she came out and told you she had left

on August 4th? A. Yes.
Q. That is why you are testifying to it it was
August 4th? A. Yes.

Mr. Dwight: No further questions.

Reredirect Examination

By Mr. Young:

Q. Miss McGuire, when is your best recollection,
irrespective of what she told you, when did she
leave?

A. I know it is somewhere around August.

Q. From your own recollection, it would be Aug-
ust ? A. Yes, it was August.

Mr. Young: No further questions. [192]

Rererecross Examination

By Mr. Dwight:

Q. She didn’t leave on the 11th of September
or the 12th of September? A. Eh?

Q. Lou Rodgers didn’t leave ‘‘Speed’’ Warren
on the 12th of September ?

A. No, I know it was in August.

Q. You are sure of that?

A. IL know it was August.

232 Llene Warren vs.

Mr. Dwight: That is all.
Mr. Young: That is all.
The Court: All right. Witness excused.

ee

JAMES P. MICHELS,

called as a witness on behalf of the plaintiff, being
first duly sworn, testified as follows:

Direct Examination
By Mr. Young:

@. What is your name, please?

A. James P. Michels.

Q. What is your profession, Mr. Michels?

A. Iam in charge of the Distribution and Trans-
mission Department for the Hawaiian Electric Com-
pany.

@. Mr. Michels, I will appreciate if you repeat
that over again, what you are.

A. I am in charge of the Distribution and
Transmission Department for the Hawaiian Elec-
tric Company.

@. And your duties are, briefly, in regard to
that ?

A. I have charge of the installation of all the
wires on the Island here. [193]

Q. On this Island? A. On this Island.

Q. Does that include all the wires leading from
the various substations and from poles into homes?
You would have supervision of that?

A. Yes, sir.

The Territory of Hawai 230

(Testimony of James P. Michels. )

Q. You have charge of any of the records as to
who is furnished electric light and power, for your
Company ? A. We keep records.

Q. In your official position? emacs,

Q. Are you acquainted with the Wahiawa Dis-
trict, as far as the power line is concerned ?

A. Yes.

Q. Will you state whether or not on August 3,
1937, your Company was furnishing power,—elec-
tric light and power to a person by the name of
Tene Warren, alias ‘‘Speed’’ Warren?

A. May I be allowed to refer to this? (Referring
to papers.)

Q. Those are the official records of your Com-
pany ?

A. These are, just a meter record. (Referring
to paper.) The name is I. C. Warren.

Q. What address?

A. Wahiawa; two-story green house, second
house from Hawaiian Electric Company substation.

Q. And was that the party being furnished elec-
tricity from the Hawaian Electric Company ?

A. Yes, sir.

Q. On that date, August 3, 1937? [194]

AY Yes, sit.

Q. Do you know what voltage was going into
that house from the line? :

Mr. Dwight: From your own knowledge.

234 Llene Warren vs.

(Testimony of James P. Michels.)
By Mr. Young:

Q. From your official position, your own knowl-
edge?

A. We have what you eall a three-wire service
feeding that house 110 volts. It was 115 volts at
that time from each outside wire to the eround, 230
volts between the two outside wires.

Q. Now, this voltage you are testifying, is that
the voltage that actually went into the house through
the fuse plugs, 110 volts?

A. 115 volts it was.

Q. Do you know the short-circuit value of that
line out there ?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial, as calling for the conclusion
of this witness without any proper foundation be-
ing laid to establish him as an expert.

Mr. Young: He is Superintendent of this Pole
and Line Department.

Mr. Dwight: I will ask that the question be read.

(The last question was read.)

The Court: Will you reframe that question ?

By Mr. Young:

Q. Mr. Michels, do you know the short-circuit
value of the line from which Mrs. Warren’s house
is fed with electricity? [195]

A. The low voltage of the wires feeding into
her house ?

. Yes.

The Territory of Hawait 235

(Testimony of James P. Michels. )

A. Ican only give you it approximately.

Mr. Young: I will withdraw the question.

Q. Now, are you acquainted with the Wahiawa
District, the geography of the streets?

pe Yess si

Q. Will you step down to this Exhibit? This is
Prosecution’s Exhibit ‘‘A’’ in evidence. (Indicat-
ing Exhibit ‘‘A’’ tacked on the blackboard.) (The
witness steps down to the blackboard.) This is a
plat of a certain district in Wahiawa; Muliwai Ave-
nue (indicating) ; Neal Avenue (indicating) ; Kua-
hiwi Avenue (indicating); Olive Avenue (indicat-
ing) . The black circles indicate light poles (indi-
cating); this indicates court house (indicating).
Now, with reference to the poles on this diagram,
will you state where this home is getting electricity?

A. From Hawaiian Electrie Company.

Q. I believe your testimony said two poles?

A. That would be the second house (indicating

on Ex. A.)
Q. That would be the second house from the
Hawaiian Electric Substation? A. Yes.

Mr. Young: Let the record show that the wit-
ness pointed to a house marked ‘‘D”’ and the named
‘Mary P. Paulos.’”’

The Court: Let the record so show.

By Mr. Young:
Q. Your records show it was the name of “I. C.
Warren?’’ [196] Is that correct? A. Wes

236 Ilene Warren vs.

(Testimony of James P. Michels. )

Q. With reference to this whole plat in here,
do you know whether or not the houses are fur-
nished with electricity from the Hawaiian Electric
Company ?

A. I know those that are supplied with electricity
are supplied from our lines. No one else supplies
electricity.

@. And the voltage going into any of those
houses on August 4, 1937, would be what you tes-
tified to? Allie: voltes

@. 115 volts. Now, do you in your duty as
Superintendent of the Pole and Light Division—
you have charge of the imaen who handle electricity ?

A. Yes, sir.

©. Does the Hawaiian Electric Company have
any rule as to dangerous voltages?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial what the rule of the Hawaiian
Electric Company is.

The Court: Objection sustained.

Mr. Young: No further questions.

Cross Examination
By Mr. Dwight:
Q. Mr. Michels, you say that there was a high
power line running up along Muliwai Street?

A. Yes, sir.
Q. From down there at the substation?
A. Yes, sir.

Q@. What was the voltage on that power line?

The Territory of Hawai 237

(Testimony of James P. Michels. )

A. We have several high power lines. ‘The top
circuit [197] on the pole is 44,000; the circuits on
the next arm are 4,000; two circuits.

Q. What is the grade of wire that you are using
on that main line to carry that 44,000 volts? Will
you describe the wire used?

A. The top line is No. 10, medium, hard-ground,
bare. |

Q. Did you receive any complaints about sparks
flying off that wire?

Mr. Young: I object. When?

Mr. Dwight: Say during June, July, August of
POE

A. When did he die?

Mr. Young: 1937.

By Mr. Dwight:

Q. During the year 1937.

A. I think we had one complaint come in as a
radio interference complaint.

Q. You didn’t get any complaint about flames
flying anywhere from ten to twenty feet off these
lines when it was raining? A. No, sir.

Q. Never got such a complaint ? A. No.

Q. Who is the name of your trouble man down
there ? A. Keahi.

Q. Do you keep a record of complaints?

i. Wes.

Q. Now, referring to this wire, No. 10, medium,
hard-ground, bare, that is not the first grade wire?
It is inferior wire. [198] A. No, it is not.

238 Llene Warren vs.

(Testimony of James P. Michels.)

Q. Is that wire permitted by the Utilities Com-
mission ? A. Yes, sir.

Q. The type of wire that is on there now?

A. Yes, sir.

Q. That wire has not been changed ?

A. No, sir.

Mr. Dwight: That is all.

Redirect Examination

By Mr. Young:

Q. Now, Mr. Michels, are you personally ac-
quainted with the home of I. C. Warren?

A. I have no personal acquaintance with it.

@. You have never seen that home?

A. I have passed by. I have never paid any
attention to it.

@. Would you know a picture of it if you saw it?

A. I don’t believe I could absolutely recog-
nize it.

Mr. Young: That is all. [199]

SS ae

EDWARD J. BURN S,
called as a witness on behalf of the plaintiff, being
first duly sworn, testified as follows:
Direct Examination

By Mr. Young:
Q. What is your name, please?
A. Edward J. Burns.

The Territory of Hawai 239
(Testimony of Edward J. Burns. )

Q. What type of work do you do, Mr. Burns?

A. Police work, sir.

Q. How long have you been a police officer?

A. About a year and three months.

Q. About a year and three months ?

A. “That, sir

Q. When did you first join the departinent,
police department? A. November 16, 1936.

Q. And that is the Police Department of the
City and County of Honolulu?

A. That is right.

Q. Were you a police officer on Paieust a, len?

A. I was.

Q. And at that time what were you general
duties? What part of the police work were you in?

A. At that time I was on the midnight shift,
working from twelve midnight to eight o’clock in
the morning as a foot patrolman.

Q. On that date, August 3, 1937, do you recall
whether or not you had any special duty ?

A. Yes, sir.

Q. Will you please tell the Court and jury
what your special duty was that night, what you
did? [200]

A. I was assigned to with Captain Caminos to
Wahiawa.

Mr. Dwight: May it please the Court, at this
time I want to object to the testimony of this wit-
ness upon the ground that it is incompetent, irrele-
vant and immaterial; upon the further eround that
it will tend to bring the reputation and character

240 Ilene Warren vs.

(Testimony of Edward J. Burns.)
of the defendant directly in issue, the reputation
and character of the defendant not having been
brought in issue; upon the further ground that any
evidence of this witness by observation in the house
was illegal and in violation of the Fourth and Fifth
Amendments of the Constitution.

The Court: The Court will overrule the objec-
tion.

Mr. Dwight: Save an exception.

The Court: Exception may be saved and noted.

By Mr. Young:

Q. Pick up where you left off.

A. I was assigned by Captain Mookini to go
with Captain Caminos to Wahiawa to raid the
house of ‘‘Speed’’? Warren. We left the Honolulu
Police Station at about 5:30 p. m. on August 3, 1937.
We arrived at Wahiawa and left the Wahiawa
Police Station at about 8:45 pp. m.,—Captain
Kalauli, Captain Caminos, Officer Chun, Officer
Apoliona, Officer Kam Yuen, the deceased and
myself.

@. You say ‘‘the deceased’’; who do you mean?

A. Wah Choon Lee.

Mr. Dwight: May I have an additional ground
of objection, for the record and that is that any
[201] evidence that this officer secured was secured
without the consent of the defendant and in viola-
tion of her rights under the constitution.

Mr. Young: This is a little premature.

The Territory of Hawau 241

(Testimony of Edward J. Burns.)

Mr. Dwight: I don’t like this system of putting
things in.

The Court: Objection overruled.

My. Dwight: Exception.

By Mr. Young:

Q. Would you know the picture of Wah Choon
Lee, if you saw it again? A. I would, sir.

Q. I show you Prosecution’s Exhibits in evi-
dence ‘‘B’”’ and ‘‘C’’. (Handing same to the wit-
ness.) Will you examine these pictures?

A. (Examining the same) Both of these pic-
tures are his pictures.

Q. Pictures of Wah Choon Lee. You may pro-
ceed.

Mr. Dwight: I would like to hear some questions.
T want to object, if they are improper.

By Mr. Young:

Q. You may proceed with your narrative, telling
what happened.

Mr. Dwight: I submit the prosecution has a right
to question this man. I have a right to object before
the narrative comes in.

Mr. Young: He can tell what he knows.

Mr. Dwight: He may get up and testify to things
that are incompetent.

The Court: Will you please ask him? [202]

By Mr. Young:
Q. Mr. Burns, you say you went with these seven
officers ? A. Seven of us altogether.

242 Ilene Warren vs.

(‘Testimony of Edward J. Burns.)

Q. Did you gather at the Wahiawa Police Sta-
tion? A. We did, sir.

@. Where did you go from there?

A. We left the Police Station and walked along
Kuahiwi Street, where I left the six others, walked
up Neal Street, turned down Muliwai and went to
‘Speed’? Warren’s place.

How were you dressed ?

I had on a grey suit, black shoes.

How were the other six officers dressed ?
All of us were in civilian clothes at the time.
You were all in civilian clothes?

That is right, sir.

You say you left them where ?

At the railroad track crossing prior to leav-
ing Neal Street.

Q. You went from there to the home of ‘‘Speed’’
Warren ? A. That is right, sir.

Q. Will you step down to this diagram a mo-
ment, please ?

A. (The witness steps down to the blackboard
on which was tacked Exhibit ‘*A’’).

Q. Referring you to Prosecution’s Exhibit ‘‘A”’
in evidence, that is, just briefly, te names of the
streets, California Avenue (indicating), Muliwai
Avenue (indicating), Kuahiwi Avenue (indicating),
the court house (indicating) and the railway track
(indicating) down here, are you familiar enough
with this to testify ? A. Yes. [203]

popopepe

The Territory of Hawa 243

(Testimony of Edward J. Burns. )

Q. Starting from the court house, will you please
trace the route that you took to ‘‘Speed”’ Warren’s
place?

A. We left the court house here (indicating on
Ex. ‘‘A’’), walked along this way over to here
(indicating), where I left the other six officers.
They turned up this way (indicating) ; I contin-
ued on this way over to ‘‘Speed’’ Warren’s house
(indicating on Ex. *‘A’’).

Q. And when you got to this point (indicating),
that is, in front of ‘‘Speed’’ Warren’s house, what
did you do when you reached the house? Just
tell us.

A. T knocked on the wall next to the front door,
and no one answered so I walked out to the road
to see if there was another entrance to the house
and walked back again to the front door and again
knocked on the wall. This time somebody stuck
their head through the screen window upstairs. I
eouldn’t see who it was. I knew 1t was a woman
but IE couldn’t see who it was. I heard footsteps
and someone came to the door, looked out, then
opened the door and said, ‘Hello’; I said, ‘‘Hello”’;
she said, ‘‘How are you?”’; I said, ‘‘Fine’’. This
was Billie Penland.

Q. Would you know this person again if you
saw her? i

Mr. Dwight: I move to strike that testimony as
hearsay, conversation between the witness and Billie
Penland, not being made in the presence of the
defendant.

24-4 Ilene Warren vs.

(Testimony of Edward J, Burns.)

The Court: The motion will be granted, and the
statement made by Miss Penland not in the presence
of the defendant will be stricken and the jury asked
to disregard it. [204]

By Mr. Young:

Q. What kind of a door was this that you saw
from the outside after knocking ?

A. It appeared to be a thick wooden door, a
metal plate on the outside, a glass partition through
which one will be able to see up about the average
height of a person.

Q. Did the door open in or out?

A. The door opened outwards.

@. And you say there was a metal plate. Will
you describe that metal plate more particularly ?

A. The metal plate extended from a little below
the window, the pane in the door, to about a foot
from the bottom of the door. It was about the width
of the door.

@. Was there any knob or handle on the outside
of that door?

A. No, sir, just the outside of the lock.

@. You say you met this girl, Billie Penland let
you in? A. That is right, sir.

(. After you went in, where did you go?

A. I followed her into the parlor, where she
stopped by a wicker table and asked me a question.

Q. Then what happened ?

A. I followed her into a room in which there
was a bed and dresser and a washstand, and as she

The Territory of Hawa 245

(‘Testimony of Edward J. Burns. )

stood by me I took off my necktie and started to
take off my coat and reached into my pocket and
said, ‘How much ?”’

Mr. Dwight: Well, I think the Court should re-
mind this witness that he can’t testify to hearsay.
T ask the Court to instruct the jury to dis- [205 |
regard that.

The Court: That answer will be stricken from the
record. The Court instructs you not to testify as
to any conversation not in the presence of the
defendant on the ground it is hearsay. The jury 1s
asked to disregard 1t.

By Mr. Young:

Q. Did you have a conversation with her in
that room ? Ane Wadia.

Q. As a result of that conversation, did you do
anything ? A. I gave her three dollars.

Q. Did she take the three dollars?

A. She took the $3.00 and a basin of water
from the washstand and walked out of the room
through the back door.

Q. When you first went in that room was the
door open or closed? A. I don’t recall.

Q. After you got in the room was anything done
about the door? A. She shut the door.

Q. Before you gave her this money was the
door closed ? A. Yes, siv. |

Q. And she left by the back door of the room?

he hay is rien.

246 Ilene Warren vs.

(Testimony of Edward J. Burns.)

Q. Which door did you come in?

A. The front door, sir.

@. That is the door that leads from which room
of the house?

A. From the living-room downstairs.

@. Was there anyone else in the living-room
downstairs [206] when you walked through there
with Billie Penland ?

A. There were two men, one Charles Erpelding ;
the other one I didn’t see him afterwards so I don’t
know who he was.

Q. After Billie Penland left the room, how long
was i1t—Did she come back ?

A. She came back into the room. I was un-
dressing, had already taken my shoes off and she
left the room again by the back door. She came
back in the room again by that back door and I
had completed undressing. She then reached in the
washstand or the bureau drawer and got a towel
out and someone came to the back door of the room.
She stepped out of the room and a conversation
ensued. She came back into the room and someone
came to the front door of the room, Marjorie Scott,
and some conversation was passed between them
about a taxi. The front door of the room was closed
again. She went over to the bed and took off her
house robe, sat down on the bed, and I reached into
the inner breast pocket of my coat, which was lying
on top of the bureau, took out a handkerchief, from

The Territory of Hawai 247

(Testimony of Edward J. Burns. )
which I took my badge and police whistle, blew the
whistle three times, showed her my badge and told
Billie Penland I was a police officer and that she
was under arrest for investigation.

Q. Now, at the time you blew your whistle, did
Billie Penland have any clothes on?

A. No, sir.

Q. Did you have any? ee Nios:

Q. About how long was it after you reached the
front [207] door was it until you blew your police
whistle, if you recall?

A. From the time that I entered the house until
LT blew my whistle, sir?

@. Yes. About ten minutes, sir.

Q. About ten minutes. Now, what happened
after you blew your police whistle ?

A. After I blew my police whistle someone came
to the front door of the room, Marjorie Scott, just
opened the door. I believe I told her that she was
under arrest and she slammed the door.

(The last answer was read. )

Mr. Dwight: I move to strike that part of the
testimony as incompetent, irrelevant and immaterial.

The Court: Motion granted.

Mr. Young: May we have our recess ?

The Court: It is 12 o’clock. We will adjourn
until two o’clock. :

Mr. Dwight: I have some matters that are rather
urgent. I would like to have an adjournment until
tomorrow morning.

248 Ilene Warren vs.

(Testimony of Edward J. Burns.)

The Court: What is it you have, some court
appearances ?

Mr. Dwight: Court appearances and some legal
research. I didn’t know this witness was going to
be called. They have just made their return at the
last session. It has been the usual practice to pro-
ceed in the morning. The jurymen are all business
[208] men and they have to attend to their business.
May we hold it up? I want to see the witness T
had called.

The Court: Just a minute.

Mr. Dwight: There is one witness that testified
this morning. I want to ask her just one more
question.

The Court: (To the witness.) Step down.

eee

LUCY McGUIRE,

a witness called on behalf of the plaintiff, resumed
the stand and testified further as follows:

Cross Examination

(Continued )
By Mr. Dwight:
The Court: You are under oath.

By Mr. Dwight:

Q. Miss McGuire, at any time during the period
that you were employed by Mrs. Warren, did you
ever see any ‘‘No Trespassing’’ signs on her
premises ? A. Yes.

The Territory of Hawau 249

(Testimony of Lucy McGuire. )

Q. And they were large signs? A. Yes.

Q. Visible to any one that wanted to look?

A. Yes.

Q. How many were on there? How many 2aN 6
Trespassing’’ signs did you see?

A. I only saw one.

Q. That was in the front? eee es:

Q. That was in the vicinity of this area along
here with reference to this hedge (indicating on Ex.
oe.) 72097 A. Yes.

Mr. Dwight: That is all.

Redirect Examination
By Mr. Young:

Q. With reference to these pictures, can you
show us where this sign was located (Referring
to Exhibit ‘‘G’’)? A. I can’t say.

Q. Get up close. This is the front of the house
(indicating). Are you sure there was such a sign?

A. Yes.

Recross Examination
By Mr. Dwight:

Q. Was the sign in about this locality over here
(indicating)? Was it not here (indicating)? It
is here (indicating on Ex. Te Prices buat?

A. It was about there (indicating).

Q. Here is the garage (indicating) ;—I don’t
know when these pictures were taken—here’s the
garage (indicating) ; here’s the house (indicating) ;
now, where is the sign, over on the other side of

the garage?

250 Llene Warren vs.

(Testimony of Lucy McGuire.)

A. I know there was one but I don’t remember
where.

@. You remember definitely there was a big ‘‘No
Trespassing’’ sign ?

(There was no answer. )

Redirect Examination
By Mr. Young:

Q. How big was the sign?

A. It was a big board.

The Court: The Court will adjourn on Mr.
Dwight’s representations until 9:00 o’clock. The
jurors are under the same instructions not to dis-
cuss the case. [210]

Mr. Young: May the records show the Territory’s
objections ?

The Court: The record may so show. Adjourn
until tomorrow morning at 9:00 o’clock.

(A recess was taken until Tuesday, February
8th., 1938 at nine o’clock a.m.) [211]

Honolulu, T. H. Feb. 8, 1938.

(‘The trial was resumed. )

The Clerk: ‘Territory of Hawaii vs. Ilene
‘“Speed’’ Warren, further trial by jury.

Mr. Young: Ready for the Territory.

Mr. Dwight: We are ready for the defendant.

Mr. Young: Stipulate the defendant and jury
are present.

Mr. Dwight: It may be so stipulated.

The Territory of Hawaw 251

The Court: Let the record show that it 1s stipu-
lated the defendant and the jury are present and
both counsel are ready.

EDWARD J. BURNS,

a witness called on behalf of the plaintiff, resumed.
the stand and testified further as follows:

Direct Examination

(Continued )
By Mr. Young:

Q. Mr. Burns, will you please draw, if you can,
a rough diagram of what you know about this house,
from what you saw that night?

Mr. Dwight: May he draw a plan before it is
shown to the jury? I might want to cross examine
im before it is shown to the jury.

The Court: Turn the board.

(The blackboard was turned with the back of same

towards the jury.)

By Mr. Young:

Q. Mr. Burns, if possible, draw 1t with Muliwai
street on the top, that is, in the same relation as
this big diagram. [212]

The Court: Let the records show that Mr. Burns
ig still on direct examination.

A. (The witness draws on a sheet of paper.)

By Mr. Young:
Q. Is that the part that you know of that house ?

A. Yes.

252 Llene Warren vs.

(Testimony of Edward J. Burns. )

Mr. Dwight: May I be permitted to cross-examine
him as to his knowledge of the diagram ?

The Court: Yes.

Cross Examination

By Mr. Dwight:

Q. Mr. Burns, is that the plan of the house as
you remembered it from experience in going in
there ? A. Yes.

Q. Did any of this knowledge come to you by
virtue of your second entry some time after 12:00
o’clock at night ? A. No, sir.

Q. Just your first entry?

A. That is right, sir.

Q. And you never checked maps in the Build-
ing Inspector’s or in the District Attorney’s office ?

A. I didn’t check any maps.

@. You never checked any maps?

A. TI never checked any maps from the District
Attorney’s office. I saw a map of the floor plan
of the house.

Q. Where did you see that map of the floor plan
of the house?

A. At Mr. Young’s office. I checked it.

Q. That is where you gathered that informa-

tion? [213] A. Yes.
Q. Well, did that help you out in drawing this
plan today ? A. I wouldn’t say so.

Q@. Was your memory any better on that at 9:00
o’clock on the morning of January 24, 1938, than
it is today, or is your memory better today ?

The Territory of Hawai 253

(Testimony of Edward J. Burns.)

A. I would say that it is about the same.

Q. It is about the same, and when you drew the
plan on January 24, you say your memory was just
the same?

A. I would say about the same.

Q. Did you examine any of these inside plans
between January 24th and the time you took your
oath here yesterday ? i eS.

Q. When did you examine the inside plan of the

house ? A. I saw one this morning.
Q. This morning? A. Yes.
Q. You saw that in Mr. Young’s office?
A. Yes.
Q. You checked the plan rather carefully ?
A. No.
Q. Just looked at it? A. That is correct.

Mr. Dwight: That is all. I am going to object,
may it please the Court.
Mr. Young: I haven’t finished with this.

Direct Examination

(Continued)
By Mr. Young:

Q. Mr. Burns, what you have drawn on the
board, is this from your own memory of what you
saw that night on your first entry, or has it been
influenced by any diagrams or [214] plans you have
seen ?

A. I would say that is from my own memory.

Q. You haven’t drawn a complete plan of the
house ? A. No.

254 Ilene Warren vs.

(Testimony of Edward J. Burns.)

Q. Why haven’t you filled that in?

A. I didn’t see those at that time.

Q. On cross-examination you testified you drew
another plan. Was that as carefully drawn as this
1s? ANOS

@. Did you use any ruler to draw that plan?

A. I don’t think so.

Q. Just free hand? A. Yes.
Q. To your best recollection, is that a correct
plan? A. Yes.

Mr. Young: I submit he is qualified.

Mr. Dwight: I object on the ground he has used
other information other than the information at
the time of his entry.

The Court: Objection overruled.

Mr. Dwight: Exception noted.

The Court: Exception noted.

Mr. Young: May this be marked Territory’s next
exhibit for identification ?

The Court: It may be entered as ‘‘Prosecution’s
Exhibit K for identification. ”’

(The diagram referred to was marked
‘“Prosecution’s Exhibit K for Identification.’’)
[215]

Mr. Young: (To the jury) Can you gentlemen see
these marks from the back there ?

(Some of the jurors nodded in the affirmative)

Q. Now, Mr. Burns, is this Muliwai street up
here (indicating on Exhibit ‘‘K’’.) 2 A. Yes.

The Territory of Hawai 255

(Testimony of Edward J. Burns. )

Q. Will you please mark with this pencil where
the front door in that house is?

A. (The witness marks as directed.)

Q. Now, on your direct examination you testi-
fied something about stairs. Will you indicate on
this diagram where these stairs are that you were
testifying to?

A. (The witness marks as directed. )

Q. Now, what is that writing you are putting
on the board at those different places?

A. This is a stairway that leads from the hall-
way to a room upstairs (indicating on Exhibit
“K’,) This is a back stairs that leads from the
hallway to some place upstairs (indicating on Ex-
lett Ke)

Q. Do you know where it leads?

me Noersir

Q. Now, will you just follow the other line you
nave on the board and explain to the jury what they
are ?

A. This is a hallway, (indicating) to which en-
trance is gained by the front door. This is a door-
way to the room upstairs (indicating. ) This is a
doorway that leads from the hallway into the living-
room (indicating.) This 1s a doorway that leads into
the little room that Miss Penland and I went. This
is another doorway (indicating. ) This is a hallway
in the back of the house. [216]

Q. You do not have any other rooms here. Do
you know whether there are any other rooms there
or not? A. No.

256 Ilene Warren vs.

(Testimony of Edward J. Burns. )

Q. You have two openings in these rooms here
(indicating.) What do they represent ?

A. This is the front door Cndicating); this is
the back door (indieating.)

Q@. Now, Mr. Burns, you came into the house,
you testified, and met a person by the name of Billie
Penland ? A. That is right, sir.

@. Will you please trace the course that you
took on the bottom floor of that house with Billie
Penland with this blue pencil? Just draw the course
you took from the front of the house.

A. Miss Penland met me at the front door here,
Gandicating) I followed her through this doorway
into the living room. We stopped by a wicker table
that was located about here (indicating) and we
continued on. She led me into this room here (in-
dicating.) (The witness traced in blue pencil the
course he took.)

Q. Will you mark that room? What is it, bed-
room ?

A. Yes. It is probably used for a bedroom, There
is a bed in there.

Q. Just put ‘“Bed”’ in there.

A. (The witness writes ‘‘Bed”’ as directed. )

Q. Now, you testified as you came into that room,
you saw two other men in there ?

A. That is right, sir.

Q. Do you recall how these men were dressed 2

A. I believe both of them were dressed in elvil-
ian [217] clothes.

The Territory of Hawaw 257

(Testimony of Edward J. Burns. )
Q. Will you just put a circle just where each
man was, as you recall?
A. (The witness draws circles as directed.)
Q. Now you testified you were in a room.
Mr. Dwight: You mean these circles?

By Mr. Young:

Q. The Circles represent two men ?

A. Sitting down. |

Q. That is your approximate location, each
cirele represents a man? A. Yes.

Q. Now, after you were in this room, with a
bed in there, a short time, you blew your whistle, 1s
that correct? fee Whats correct.

Q. What door did Marjorie Scott come through,
that you testified in your direct examination ?

A. Marjorie Scott came through the front door.

Q. She is the first person that came into the room
after you blew your whistle?

A. She is the first person that came, but didn’t
come 1.

Q. How long after you blew your whistle did she
make an appearance at that door?

A. About five seconds.

Q. Did any one else come to any door while you
were in that room?

A. ‘Speed’? Warren came through the back
door of the bedroom. [218]

Q. About how long after you had blown your
whistle ? A. About ten seconds.

258 Ilene Warren vs.

(Testimony of Edward J. Burns.)

Q. About ten seconds. Is that your best judg-
ment ? A. Yes, sir.

(. She came to the back door. What did she do,
if anything ?

A. She came in the back door, told Miss Pen-
land to get out of there. I advised her Miss Penland
was under arrest; that I was a police officer. She
insisted on Miss Penland leaving the room. I tried
to detain Miss Penland by holding her. ‘‘Speed’’
Warren grabbed hold of my arms. Miss Penland ran
out the front door of this room, ran toward the hall-
way, and I followed her. Miss Penland reached in
the hallway and turned towards the front door and
then turned back to the back stairway, and I caught
her right here, when she turned back to the back
stairway.

@. What were vou doing in the hallway after
you caught her?

Mr. Dwight: May I have the last answer?

(The last answer was read.)

By Mr. Young:

Q. Did you follow Miss Penland through the
living room, going back to the door?

A. That is right, sir.

Q. About how far behind her were you as she
was running across the room towards the front
door ?

A. AsI say, she was about here (indicating) and
I came to the door, about the middle of the room,
approximately twelve feet.

The Territory of Hawai 259

(Testimony of Edward J. Burns. )

Q. Approximately twelve feet. Did you gain on
her, [219] catch up to her as she reached the hall-
way? A. Yes, sir.

Q. Did you ever lose sight of her for any time
as she was running across the room?

A. No, sir, I did not lose sight of her.

Q. Did you see her at all times ? A. Yes.

Q. You can take the stand, now. Was she within
your full view all the time that she was in the hall-
way ? A. Yes, sir.

Q. Now, when you say ‘‘Speed’’ Warren came
into the room, who do you mean?

Will you indicate where she is?
_ Sitting over there dressed in white (indi-
cating the defendant. )

Mr. Young: Let the record so show.

The Court: The record will so show.

A. Ilene Warren, the defendant.

Q. Is she here this morning’? A. She 1s.
Q. Had you ever seen her before that time?

iy. Nos.

Q. Can you identify her now? A. Yes, sir.
Q.

A

By Mr. Young:

Q. When you indicated you were a police officer
did you do anything or say anything else ?

A. At the time we were in that bedroom?

Q. Before Miss Penland ran out?

A. Ltold Miss Penland she was under arrest. I
had [220] my badge in my left hand when she came

260 llene Warren vs.

es

(Testimony of Edward J. Burns.)

at me. I didn’t show it up to her face. When she
came at me I had it in my left hand. I placed it on
the bureau. She grabbed hold of my hand. I stated
in my last testimony in the case that it seems to me
that I believe she had seen it.

@. Now, approximately how long did you
struggle?

Mr. Dwight: I am going to move to strike that
portion of the witness’ answer where he says he be-
lieves she showed it.

Myr. Young: I have no objection.

The Court: The jury will be instructed to disre-
gard that.

By Mr. Young:

@. Approximately how long, to your best recol-
lection, did you struggle with ‘‘Speed’’ Warren in
the bedroom ?

A. That was probably about from the time that
she started struggling with me, sir, and the time
I left her and started chasing Miss Penland.

Q. Yes.

A. That would have been about five seconds.

@. Irom the time you started to struggle with
her and you left to go and follow Billie Penland 2

A. Yes, sir, that would be about five seconds.

Q. Was Billie Penland there some of the time
that you were struggling with her?

A. She was.

Q. And then, I understand, you broke loose and
followed Billie Penland ?

The Territory of Hawai 261

(Testimony of Edward J. Burns. )

A. That is right, sir.

Q. Now, you caught up, you say, again to Billie
[221] Penland in the hallway ? A. Yes, su.

Q. Did you see ‘‘Speed”’ Warren again at any
time after you had seen her at the bedroom ?

A. After I reached in the hallway, when il
secured Miss Penland, that is, I held her by the
arm and after I had heard the pounding sounds on
the doorway and Captain Caminos’ voice saying,
“Open up, police officers’, then IT turned to the
front door, ‘‘Speed’’ was already there.

Q. Do you know how she got to the hallway from
the bedroom ? A. No, sir.

Q. Did you see her at any time crossing the
room ? Ae Nioy Sin:

Q. I understand you just saw her at the bed-
room and later on saw her at the hallway when you
turned around for Billie Penland, is that correct ?

A. That is correct, sir.

Q. What happened while the three of you were
there in the hallway? Will you tell us what hap-
pened from that point on, if anything ?

A. Yes, after I secured Miss Penland and IL
heard the pounding sounds on the door, heard Cap-
tain Caminos’ voice, “Open up “Speed”, police
officers’, I turned to the front doorway. “Speed”
Warren was standing at the doorway on my left-
hand with her back towards me, her left arm was
reaching inside the doorway leading upstairs with
her hand behind the casing, so that I could not see Te

262 Llene Warren vs.

(Testimony of Edward J. Burns.)
She gave a downward motion of that hand, [222] re-
sembling someone pulling a light cord. I then
reached for her to pull her away from the door to
open the door. She grabbed hold of my arm. In the
mix-up Billie Penland got away. I turned around—
before turning around I told ‘“‘Speed’’ Warren that
I was a police officer; that she was under arrest for
assault and battery in this case. I turned around to
see where Miss Penland had gone and I believe I
saw her running—I saw her running up the back
stairs. I turned around again to open up the front
door and ‘‘Speed’’ was at the front door, trying to
lock it. I pulled her away from the front door and
opened it about six inches. Captain Caminos was
the first one to come in the doorway.

Q. At the time that the door opened who was
closer to the front door, you or ‘Speed’???

A. We were both about the same distance from
the front door, sir.

Q. Who was the closest to the door leading up
on the righthand going up the stairs?

A. At the time I opened the front door I was.

Q. Here’s the front door here (indicating) ; who
was closest to this stairway at the time the front

door opened ? A. I was.

@. You were? A. Yes, sir.

@. What did you do after the door, just right
after the door opened ? A. Stepped back, sir.

Q. Stepped back which way? [223]
A. Towards the back stairway.

The Territory of Hawai 263

(Testimony of Edward 1. Buriisy)

Q. Will you just indicate on the map where you
stepped ?

A. When I opened the front door, T was stand-
ing just about here (indicating), in the middle of
the doorway; of course, a little bit back (indicat-
ing on Ex. ‘‘K’’) I shoved it a little bit, opened it
about six inches. ‘‘Speed’’ was standing about here
(indicating). I stepped back from the front door-
way. ‘‘Speed’’ crossed over to this side (indicating
on Ex. ‘‘K’’) and Captain Caminos came to the
door.

Q. Will you please place an ‘‘X”’ where you
saw ‘“‘Speed’’ Warren’s hands in this pulling mo-
tion that you have stated?

A. (Marking ‘X’’ on ec aie?) iliere, sir.

Oy 1 understand that was before the door

opened ? A. That is right, sir.

Q. Just when she was at that position, where
were you?

A. I was about here, sir (indicating on Ex.
WK.)

Q. And where was Billie Penland?

A. About here (indicating on His, 47)

Q. And ‘Sneed’? was over near here (indicat-
ing)?

A. She was standing about here (indicating on
Hine oka).

Mr. Dwight: Better mark that.

Mr. Young: Does your Honor mind if we just
use this door? (indicating the door back of the

Court.)

264 Ilene Warren vs.

(Testimony of Edward J. Burns. )

Mr. Dwight: For what?

Mr. Young: Just to illustrate the way she had
her hand behind the door. [224]

Mr. Dwight: I am going to object. I don’t think
they should come in here and renig. He testified
twice and both times it is different. I object.

The Court: The Court will overrule the objec-
tion and allow the witness to demonstrate with this
door.

Mr. Dwight: May I save an exception ?

By Mx. Young:

Q. Assume, Mr. Burns, that is the door going
up and a hallway on the righthand side (referring
to same door.) Will you just illustrate the way you
saw ‘*Speed’’ Warren open the door?

A. (The witness leaves witness and is at door
back of the Court.) This would be the front door
(indicating); this would be the stairway (indi-
cating).

Lhe Court: Open that door.

Mr. Young: (To the Clerk) Mr. Wilder, hold.
that open temporarily. (Mr. Wilder complies. )

©. You just take the position that ‘*Speed”’
Warren was in when you saw her do this?

A. (Demonstrating) She was standing; this
would be the front door (indicating); this would
be the stairway leading upstairs (indicating); she
was standing like this, peering out the glass in the
front door, her left arm was up like this (demon-
strating a position, reaching with lefthand towards
the upper outside of door panel.)

The Territory of Hawai 265

(‘Testimony of Edward J. Burns. )

Mr. Dwight: Come out and show your arm so
the jury can see the position.

A. Out like that (demonstrating). [225]

By Mr. Young:
Q. Did you see her hand? A. No, sir.
Q. How much of her arm did you see?
A. I would say a little bit, from the wrist, sir.
Q. So you just saw it inside the sill, like you
heave 1{ vere? A. Yes.
Mr. Young: That is all.

Cross Examination
By Mr. Dwight:

Q. May I cross examine on that point while he
ig there to save the trouble of coming back—you
coming back again? Mr. Burns, will you demon-
strate just exactly what you saw? How was Mrs.
Warren’s arm when you saw her?

A. like this (demonstrating. )

Q. She was peering out of the door?

A. That is right, sir.

Q. What was this pulling of a string that you
demonstrated ? A. Itwas a downward motion.

Q. Demonstrate to the jury.

A. If the jury was in my place, she would be
standing like this (demonstrating. ) They would see
her arm come down something like that (demon-
strating).

Mr. Dwight: That is all.

(The witness resumes the witness stand.) [226]

266 Ilene Warren vs.

(Testimony of Edward J. Burns.)
Direct Examination

(Continued )
By Mr. Young:

@. Now, to your best recollection, Mr. Burns,
how long did this struggling take place in the hall
from the time you entered there until the front
door opened, your best recollection 2

A. From the time I entered the hallway until I
opened the front door.

Q. When you came back here (indicating on Ex.
‘“K’’) and the front door opened, about how long
a time transpired 2?

A. That would have been somewhere around ten
seconds, sir.

Q. About ten seconds. Now, Mr. Burns, why
did you blow your whistle in the bedroom?

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial.

Mr. Young: It is very competent, Your Honor.
I submit the question.

Mr. Dwight: I submit it is incompetent, irrele-
vant and immaterial.

The Court: Objection overruled.

Mr. Dwight: Exception.

A. I blew the whistle—I blew the whistle in the
bedroom because that was a prearranged signal be-
tween Captain Caminos and his men and myself;
that they were then to raid the house.

@. Was anything happening in your presence?

The Territory of Hawai 267

(‘Testimony of Edward J. Burns. )

Mr. Dwight: I move to strike that answer as
incompetent, irrelevant and immaterial, as preju-
dicial to the defendant and as incompetent [227]
upon the ground that no valid arrest had been made
and no felony had been committed according to the
evidence of this witness.

Mr. Young: I don’t know. If counsel will give
me an opportunity to find out why he blew it

The Court: Objection will be overruled at this
time.

Mr. Dwight: Exception.

By Mr. Young:

Q. What was happening in that room that caused
you to blow it? That 1s what I meant by the ques-
tion.

Mr. Dwight: Objected to as already asked and
answered. He has already told the jury why he
blew the whistle.

Mr. Young: If Your Honor desires a reason for
this question, I will make my offer of proof out of
the presence of the jury.

(The jury retired from the court-room. )

Mr. Young: I offer to prove by this witness, if
he is allowed to answer the question, that at the
time he blew the whistle an act of prostitution was
about to be committed; that every preparation had
been made and the act was about to the completed.
In other words, there was an attempt to commit
the crime and it was because of that that he blew

268 Ilene Warren vs.

his whistle, in his own mind having an idea that
he was going to place her under arrest. This will
be very material as to whether the other officers
had a right to go on the [228] premises, as to
whether they had reasonable grounds in order to
assist this officer in making an arrest. We have a
right by this evidence to show the frame of mind
of this officer and the grounds upon which the other
officers acted in making their entry.

Mr. Dwight: I object to that as incompetent,
irrelevant and immaterial; upon the ground that
the evidence affirmatively shows that the witness—
I mean the person in the room had been placed
under arrest for investigation and that this is a
misdemeanor and that the hearsay evidence, evi-
dence of information, evidence of planning, evi-
dence of general reputation is hearsay and is not
a fact which would warrant any officer in entering
a house for the purpose of making an arrest on
the theory that the crime was committed in their
presence. I have two authorities here, if the Court
wants to read them, one from the Ninth Circuit
Court of Appeals and one from the Eighth Cireuit
Court of Appeals. The Eighth Cireuit Court of
Appeals case involved a situation like this. The
police had absolute general information that this
house was a place of bootlegging. They left the
police station for the purpose of raiding. They
went down, surrounded the place and sent a man in
under a plan by which, if he made the buy, he was

The Territory of Hawai 269

to throw his hat out of the door. He made the
buy, threw his hat out of the door. The police
officers [229] rushed in. That is illegal.

Mr. Young: As long as it is in the evidence that
he placed her under arrest and blew his whistle;
that he blew his whistle before he placed her under
arrest, I want to know why he blew his whistle.

The Court: The question whether the officers on
your authority were trespassers or had reasonable
grounds to go in will come up later.

Mr. Dwight: I know that any evidence—to begin
with, what his opinion was

The Court: It is not his opinion but what was

in his mind.

Mr. Dwight: That is a conclusion. It is for the
jury to determine whether or not under the law
there are sufficient facts and for the Court to de-
termine from his own

The Court: The Court will overrule your objec-
tion. Objection overruled.

Mr. Dwight: May I save an exception to that
question ?

The Court: Exception may be noted.

Mr. Young: Read the last question.

Mr. Dwight: And I cite further authority on
the recent Corum decision for the purpose of mak-
ing my objection at this time.

(The jury returned to the court-room and jury-
box.)

270 Ilene Warren vs.

(Testimony of Edward J. Burns.)

(The reporter read as follows:)

‘“Q. What was happening in that room that
caused [230] you to blow it? That is what I
meant by the question.”’

A. An offense had been committed in that room
In my presence, the offense of attempted prosti-
tution.

Q. And that is the reason you blew your whistle?

A. That is right, sir.

Q. Do you know this girl Billie Penland, if
you saw her again ? A. Yes, sir.

Mr. Young: Call Billie Penland in for identi-
fication.

(The bailiff responded by bringing a woman into
the court-room. )

By Mr. Young:

Q. Do you know this lady (indicating the same
person ) ?

A. That is Billie Penland.

Mr. Young: (To the same person) What is
your name ? A. Billie Penland.

Mr. Young: Let the record show the identifica-
tion.

The Court: The record may so show.

Mr. Young: Call Marjorie Scott, please. Call
Marjorie Scott in here.

(The bailiff responded by bringing a woman into
the court-room. )

The Territory of Hawan 271

(Testimony of Edward J. Burns. )

By Mr. Young:
Q. You see this girl here (indicating the same
person) ? i. Wes, sur.

Q. Do you know who she 1s?
A. That is Marjorie Scott.
Q. That is the person that you named in your

evidence? [231] DR SUES
Mr. Young: (‘To the same person) What is your
name ? A. Marjorie Scott.

Mr. Young: Let the record show the identifica-

tion.
The Court: Let the record so show.

By Mr. Young:

Q. Can you give us your best estimation of the
time it was altogether from the time you first blew
your whistle until the front door opened?

A. You mean the time that elapsed, sir?

Q. Yes, approximately.

A. Approximately half a minute, sir.

Myr. Young: Approximately half a minute. Will
the Court excuse me to check my minutes ?

Q. Did you touch any switch at any time while
you were in the hallway ? A. No, sir.

Mr. Dwight: Objected to as leading.

The Court: Objection sustained.

Mr. Dwight: I ask that the answer be stricken
and the jury instructed to disregard it.

The Court: Has he answered it? The jury is
instructed to disregard it.

272, Ilene Warren vs.

(Testimony of Edward J. Burns.)

By Mr. Young:

@. Mr. Burns, while you were in the hallway,
did you touch anything in the hallway other than
Billie Penland and ‘‘Speed’’ Warren?

A. I touched the front door.

@. You touched the front door. Anything else?

‘ [232]

A. I believe that is all, sir.

@. I will ask you whether or not you at any time
put your hand into the hallway there where you
saw “Speed’’ Warren put her hand 2

Mr. Dwight: Objected to as incompetent, irrele-
vant and immaterial; upon the further ground that
the question is leading.

Mr. Young: It is leading. I want to eall the
witness’ attention to the fact somehow—submit dite,
your Honor.

The Court: The Court will sustain the objection
to the form of the question. If you will ask him
if he at any time went into that entrance where the
stairway was and not limit it to his hand.

By Mr. Young:

@. Mr. Burns, did you at any time go up those
stairs on the righthand side?

A. Not from the time of my first entry to my
leaving the place with Captain Caminos afterwards
with “Speed”? Warren, nor did I touch anv—-touch
the switch that was placed up near the place at the
beginning of the stairway, at the foot.

Mr. Dwight: Q. You say you didn’t?

The Territory of Hawai 273

(Testimony of Edward J. Burns. )

A. At no time. I didn’t know that it was there,
sir.

Mr. Dwight: I am going to move to strike that
answer on the ground that it was suggested by the
last leading question, incompetent, irrelevant and
immaterial and leading for that reason.

The Court: The court will overrule the [233 ]
objection.

Mr. Dwight: Save an exception.

The Court: Exception may be noted.

Mr. Young: Your witness.

Cross Examination
(Continued )

By Mr. Dwight:

Q. Mr. Burns, how long have you been a police
officer ?

A. About a year and three months.

Q. And were you—How long have you been a
foot patrolman’?

A. I was a foot patrolman. I am still a foot

patrolman.
Q. You mean you were commissioned a foot
patrolman ? A. That is right.

Q. Were you assigned to any duties, commonly
called ‘‘stool-pigeoning’’?

A. No, not when I first came in. T was assigned
immediately.

Q. When did you start to be a ‘‘stool-pigeon”’,
as we term it? A. TI never did.

274. Ilene Warren vs.

(Testimony of Edward J. Burns.)

Q. You were never sent in to do under-cover
work in cases?

A. I was detailed specially by Captain Caminos.

Q. That was the only time?

A. There was one time previously. I do not re-
call the date.

Q. Now, Mr. Burns, before you became a police
officer, what was your occupation? [234]

A. I was a truck driver at the Express Agency.

Q. How long did you work there?

A. About two years.

@. Before that what was your occupation ?

A. I worked for the City and County for a short
period.

Q. What Department ?

A. Building Inspector’s Department, and prior
to that I worked at Honolulu Dairymen’s Asgocia-
tion as a driver-salesman.

Q. Prior to that?

A. Prior to that I worked as a stevedore for
Matson Navigation, as a clerk at the piers for Mat-
son Navigation Company and Dollar Steamship
Company; worked at Hawaiian Pines during Sev-
eral summer seasons.

Q. Did you go to school here? A. Yes.

Q. Born here?

A. Born in the States but I was raised here.

Q. Now, Mr. Burns, did you know Miss Penland
before you went to the Warren house?

A. No.

The Territory of Hawau 275

(Testimony of Edward J. Burns. )

Q. How did you know her name was Penland?

A. I was informed afterwards.

Q. So you didn’t know who she was when you
went in there? A. No.

Q. When were you informed her name was Pen-
land?

A. I believe Detective Quinn told me that when
I was making out my report. [235]

Q. When you testified on direct examination
Miss Penland came down——

A. Quinn subsequently told me it was Penland.
She was later identified and called herself Pen-
land.

Quinn told you? A. Yes.

Who assigned you to this duty?

Captain Mookini.

Captain Mookini? Ae Tinimiserreht.
And he assigned you to Captain Caminos?
Yes, but that was indirectly.

_ Who told you to leave Honolulu and go out
and raid ‘‘Speed’’ Warren’s?

A. Captain Caminos.

Q. Captain Caminos. What did he tell you, to
raid the place?

A. He told me to go along; he wanted to get
evidence of prostitution; they were running a house

Orooroe

of prostitution.

@. That was your instruction, to go along and
get the evidence? A. That is right.

Q. That was all the instruction he gave you?

276 Llene Warren vs.

(Testimony of Edward J. Burns.)

A. He told me if I could get in the room with a
girl and she was undressed and I was undressed
the evidence would be more conclusive.

@. You went in and got undressed ?

A. Yes.

@. Did you intend to have intercourse with that
girl that night? [236] A. No.

Q. Never intended to do it?

my IL chia onary,

@. When you walked in there you had no idea
of committing fornication ?

A. It would have been adultery. I am married.

Q. You never intended to do it?

A. No.

@. You never had any idea of doing anything
which would be considered evidence of prostitu-
tion ?

A. Not of committing the actual act.

Q. Not of committing the actual act? And you
didn’t commit the actual act? A. No.

(). And you blew your whistle when you knew
that no act of prostitution had been committed 2

A. ‘There was an attempt at it.

Q. You meant to compel her to commit prosti-

tution ? A. By both of us.
Q. By both of you. You considered that an at-
tempt? A. Yes, sir.

Q. So you blew your whistle?
A. That is right.

The Territory of Hawai art

(Testimony of Edward J. Burns. )

Q. You had her arrested?

A. I arrested her.

Q. And you were naked at the time ?

A. I was.

Q. You say you reached over and picked up a
handkerchief, as I remember 1t?

A. I reached in the inner breast pocket of my
coat [237] that was lying on the bureau and picked
up my handkerchief.

Q. Where was the badge, inside the handker-
chief ? A. That is right.

Q. Where was the whistle, inside the handker-
chief? A. Yes.

Q. You blew the whistle with the handkerchief
up?

A. No, sir, I took the handkerchief away.

Q. Now, Mr. Burns, you say you left the po-
licemen, the other officers somewhere along here
(indicating on Ex. “A??) You indicated some-
where along here (indicating. ) Where did you
leave them?

A. Down on Kuahiwi Avenue where the railroad
tracks start.

Q. Here (indicating on Tiere Aa)?

A. That is right.

Q. Here is where you left the police officers ?

A, What is right. ,

Q. You went up and went along here (indi-
cating) and came to the door and knocked at the

door?

278 Ilene Warren vs.

(‘Testimony of Edward J. Burns.)

A. I didn’t go up the railroad track; I went
up Neal Avenue.

Q. You went up Neal Avenue and you knocked ?

A. Yes, sir.

Q. Nobody answered ? A. No, sir.

@. You walked around the house?

A. I walked to the road and walked to the side
of the house to see if there was another entrance.

Q. Then you came back to the house again and
knocked ? [238] A. That is right.

Q. So you went there twice and knocked ?

A. That is right.

@. You recall testifying in this same matter a
few days ago on the Motion to Suppress ?

A. Yes, I testified.

@. You remember testifying that you went up
to the door and knocked and you were admitted by
a woman whom you did not know?

A. Yes, I testified to that.

@. You never testified about the two times you
went there?

A. At the time that Prosecutor Cassidy asked
me to relate the circumstances he gaid to do so
briefly. I didn’t believe it was necessary at the
time.

Q. You did not believe it was necessary. Well,
you recall Mr. Cassidy asking you this question:
(Reading) ‘Question: You all went to ‘Speed’
Warren’s place?’’ You remember that question ?

The Territory of Hawait 279

(Testimony of Edward J. Burns. )

A. He may have asked something lize that. 1
don’t recall the exact question.

Q. Your answer was: (Reading) ‘‘We all went
there, not all together’’?

A. I went there by myself.

Q. (Reading) ‘“‘You were assigned to go in?”’;
the answer was ‘‘Yes’’? A. Yes.

Q. (Reading) ‘‘When you got there, tell us
briefly what you did from the time you got there.”’
You remember that question? [239]

A. Something like that, yes.

Q. (Reading) ‘‘I went to the door of her house
and knocked there and was admitted by a woman
named Florence Penland’’.

A. That is right.

Q. That is right. You never testified about your
first visit, that you knocked and nobody answered
and that you went around to the side of the house
and then came back?

A. No, I didn’t.

Q. Now, you didn’t think that was necessary,
in your opinion, to tell all the facts?

A. At the time he asked me to give him the
events brefly; I didn’t believe it was necessary.

Q. So you went into the house?

A. Iwas admitted into the house.

Q. And the only woman you saw was this Pen-
land woman ? A. That is right.

Q. You walked through into a room?

280 Llene Warren vs.

(Testimony of Edward J. Burns.)

A. Walked through the living room into that
back bedroom.

@. You started to take off your clothes?

A. That is right.

Q. You stripped down until naked 2

A. At the time, yes.

@. And she was sitting there on the bed, as I
remember your testimony ?

A. That was after she had gone out twice.

Q. You testified she went out twice?

A. That is right. [240]

Q. Somebody spoke to her from one door; some-
body spoke, she went out with wash basin, then
somebody came, then she went to the back door of
the room and had a conversation with somebody ;
she stepped out of the room, she came in again ;
somebody came to the front door of the room and a
few words were passed ?

Then she took off her robe and I arrested

What did you arrest her for?
For attempted prostitution, sir.
What did you arrest her for?
You mean what did I say?
Yes.
I stated I was a police officer; I was placing
her under arrest for investigation.
@. You told her you were placing her under
arrest for investigation ? A. Yes.

ay
POPODOe b

The Territory of Hawai 281

(Testimony of Edward J. Burns. )

Q. Not you were placing her under arrest for
attempted prostitution ?

A. That is right.

Q. Whom did you talk to between January 29th
and the time that you took the stand today about
what you were arresting her for? Whom did you
discuss the case with?

“A. T discussed the case with Mr. Young. That
fact was not mentioned.

Q. That fact was not mentioned ? A. No.

Q. Can you give any reason for switching your
testimony that you placed her under arrest for in-
vestigation and the other one was because she at-
tempted to commit [241] prostitution ?

Mr. Young: I object to this as a misstatement
of the evidence.

By Mr. Dwight:
Q. You are talking about what was in your mind?
A. That is just what I was going to tell you.
Q. It was in your mind to arrest her for at-

tempted prostitution? A. That is right.
Q. You told her she was arrested for investi-
gation ? A. That is right.

Q. You told her nothing else?

A. That is right.

Q. You had to pass an examination to be a police
officer ? aes

Q. You ever read the law on the arrest and how
to make the arrest? pre ees:

Q. And that is your answer ? A. Wee

282 llene Warren vs.

(Testimony of Edward J. Burns.)
Q. And you passed the examination ?
A. Yes.
The Court: The Court will take a short recess.
It is ten after ten.
(A brief recess was taken.)
(The last question and answer were read. )

By Mr. Dwight:

Q. Now, after you blew your whistle, Mr. Burns,
you said Marjorie Scott came to the door? [242]

A. Came to the front door of the bedroom.

(). Who told you her name was Marjorie Scott?

A. I was informed later on and I also had seen
her before; in fact, I had a little case with her, but
the name was different.

Q. Well, when were you informed her name was
Marjorie Scott? Was it yesterday when you talked
to Mr. Young?

A. No, sir, sometime prior to making my report
on the 4th I asked Detective Quinn what her name
WAS.

@. You were informed sometime before making
your report? You are sure of that? A. Yes.

Q. It wasn’t subsequent to January 29, 1938,
that her name was Marjorie Scott? A. No.

Q. Do you recall testifying in this court on
January 29th? A. Yes.

Q. Do you reeall testifying that after you blew
your whistle

Mr. Dwight: May I have just a moment, your
Honor?

The Territory of Hawait 283

(Testimony of Edward J. Burns. )

The Court: Certainly.

Mr. Dwight: I withdraw that question for the
time being. (Examining transcript.)

Q. Do you recall testifying before this Court
that a woman came to the door, whose name you
didn’t know? A. I don’t.

Q. You don’t recall testifying to that?

A. No. [243]

Q. The woman that came to the front door?

A. I don’t recall testifying.

The Court: The front door of the bedroom?

Mr. Dwight: The front door of the bedroom.

A. I don’t recall testifying to the fact that I
didn’t know her name.

By Mr. Dwight:

Q. Now, you also testified on direct examina-
tion that there were two men in the parlor down-
stairs; one man’s name was Erpelding. You re-
call testifying to that?

A. His name was Erpelding.

Q. Well, Erpelding, you testified about Erpel-
ding on January 29th?

A. I don’t recall if 1 testified.

Q. You remember testifying that there were
some soldiers there? You didn’t know their names.

A. J testified there were two men that I didn’t
know. |

Q. You didn’t know ?

A. Imay have testified to Mr. Erpelding’s name.
He was there after I left the room.

284 Ilene Warren vs.

(Testimony of Edward J. Burns. )

@. You have a definite recollection of giving
Mr. Erpelding’s name? AES ING, (LC chante

Q. That was on J anuary 29th, a couple of weeks
ago?

A. I don’t recollect whether I gave his name
or not.

@. When Marjorie Scott came to the front door,
Mr. Burns, what did she do, just look in or say
something ?

A. The front door of the bedroom?

Q. Yes, I am talking about Marjorie Scott, the
one [244] you called Marjorie Scott.

A. After the whistle was blown ?

@. At any time.

A. When she came to the front door after the
whistle was blown she just looked in.

Q. She just looked in; you did not place her
under arrest ?

A. Yes, I stated I believe I did and it was
stricken.

@. Did you or did you not place her under ar-

rest ? A. I cannot state definitely, sir.

@. You say she came and looked in the door and
left ? A. That is right.

Q. You don’t recall whether you placed her un-
der arrest or not? A. That is right.

Q. Then you say Mrs. Warren came in the back
door of the bedroom ? A. Yes, sir.

Q. And that was sometime after Marjorie Scott
looked in the front door of the bedroom?

The Territory of Hawai 285

(Testimony of Edward J. Burns.)

A. Probably a little more than five seconds.

Q. What did Mrs. Warren say to you right off
the bat when she came in?

A. ‘What is the big idea of breaking into a re-
spectable house this way ?”’

Q. That was her first statement to you?

ANS CES,

Q. Did she request that you get out of her
house ?

A. TI don’t recall her saying that.

Q. You deny that she told you to get out? [245]

A. Ido.

Q. That is all you recall her saying, ‘‘What do
you mean by coming and breaking into a respect-
able house ?”’

A. She said other sentences to that effect also.

Q. What was that answer?

A. She said other sentences or phrases to that
effect also, ‘‘The idea of breaking in here’’; some-
thing like that, sir.

Q. Now, you don’t recall whether Mrs. Warten
saw your badge or not?

A. Istated that I did not show it to her.

Q. You stated you did not show it to her?

he Tne isaene.

Q. You put it on a dresser, I think you testified
on direct examination ?

A. Top of the dresser.

Q. Then she told you—Then you folks got mto
a fight, you and Mrs. Warren?

286 Ilene Warren vs.

(Testimony of Edward J. Burns.)

A. It was not a fight, a scuffle.

Q. <A scuffle. Who hit first?

A. There was no hitting done.

Q. No hitting. What did you do in this scuffle?

A. She grabbed hold of my arms when TI at-
tempted to hold Billie Penland from running out
of the room.

Q. When she grabbed hold of your arms, did
she tell you to get out of the house?

A. No, sir.

Q. She did not? A. No.

Q. The three of you were fighting in this room?
[246]

A. Billie Penland wasn’t in the scuffle.

Q. She was not in the scuffle. Were you hold-
ing onto Billie Penland ?

A. I grabbed hold of her once and shoved her
back on the bed.

Q. When was that?

A. When she got off the bed and attempted to
run out of the room and after ‘“‘Speed’’ told her
to get out the room.

@. And then you and ‘‘Speed”’ were hanging on
to each other?

A. She grabbed hold of my arms so I pushed
loose. Billie Penland ran out of the front door.
I twisted my arms loose from ‘‘Speed’’ and chased
after the girl.

@. You were directly back of Billie Penland ;
as soon as Billie Penland went out of that front

The Territory of Hawai 287

(Testimony of Edward J. Burns.)
door of the bedroom and started out, you could see
her?

A. Why, yes, I saw her running; she was Tinh (live
middle of the room.

Q. You went across this room (indicating on
Ex. ‘‘K’’), when you got to point that you indi-
cated along here, indicating a point after coming
out of this door, you caught up to Billie Penland?

A. “Wiad istreht.

Q. Did you run? A. Yes, I chased her.

Q. You chased her and when you got out here
(indicating on Ex. ‘‘K’’), you testified on direct
examination that Mrs. Warren was peering out of
the front door?

A. No, sir, I did not testify to that. [247 |

Q. Then what did you testify to?

A. TI testified to the fact that after I erabbed
hold of Miss Penland she struggled a little. Natur-
ally I had to grab probably two or three times be-
fore I got a good hold on her. T heard those pound-
ing sounds and Captain Caminos saying, ‘‘Open
up’’, then I turned to the front door. I saw ‘‘Speed”’
was already there.

Q. You don’t know how she got there?

A. No.

Q. You never saw her coming out of the room?

A. No. |

Q. You feel anybody pounding on you, trying
to throw you out of the back door? A. No.

288 llene Warren vs.

(‘Testimony of Edward J. Burns.)

Q. Did anybody tell you to get some clothes on?
You didn’t hear those words? A. No.

Q. Well, now, when you say you struggled a
little with Billie Penland, you demonstrate just
what you did. You grabbed her, you caught up to
her and then you grabbed her?

A. That is right.

@. She stopped right away?

A. She tried to get away.

Q. She tried to get away, then you got a good

hold on her? A. Yes.
Q. As far as that incident is concerned, you had
Billie Penland ? A. Yes. [248]

(). How long did that take, when you grabbed
Bille Penland and you held her firmly ?

A. Perhaps two seconds.

Q. You two were scuffling right out here, right
there where you indicated at that cross (indicating
on Ex. ‘‘K’’.)? A. Yes.

@. Then you glanced to the front door and saw
‘‘Speed’’ peering out about that time?

A. Yes, sir.

@. Did ‘‘Speed’”’ say anything to you at that
time or you to her?

A. She may have said something but I did not
say anything until I told her she was under arrest
for assault and battery.

@. When did you tell her she was under arrest
for assault and battery ?

The Territory of Hawaun ee)

(Testimony of Edward J. Burns.)

A. After she turned towards me, grabbed hold of
my arms and clawed at me.

Q. You mean assault and battery upon a police
officer ? Ae Thais ht:

Q. Prior to that time you don’t recall her tell-
ing you to get out of the house?

A. She didn’t.

Q. She didn’t. You do remember her telling
you, ‘‘What do you mean by breaking into my
house, a respectable place?’

A. She said that.

Q. It was after that you told her you placed
her under arrest for assault on a police officer?

A. That is right. [249]

Q. Do I understand your testimony to be that
after you had a firm hold on Miss Penland out
there in front and you peered—you looked out to-
ward the door and saw Mrs. Warren peering out?

A. Yes.

Q. You grabbed her after that?

A. Yes.

Q. What did you grab her for?

A. To pull her away from the door.

Q. What did you pull her away from the coor
for? A. To open the door.

Q. Did she tell you that she would open the
door? A. No. |

Q. Did she tell you then to go get some clothes
on? ee Olivenc:

Q. You deny that? A. Yes.

290 Ilene Warren vs.

(Testimony of Edward J. Burns.)

Q@. And for no reason at all, because you wanted
to open the door, you grabbed hold of Mrs. Warren
and pulled her aside?

A. I didn’t. I sueceeded in pulling her aside
that time.

You reached for her and grabbed her?

That is right.

And she turned around and struck you?
She didn’t strike me.

She clawed at you?

That is right.

Then you arrested her, told her she was un-
der arrest for assault and battery on a police of-
ficer ? [250] A. That is right.

Q. For what offense were you charging her with
assault and battery on a police officer, for the as-
sault inside or the assault outside by the door?
The assault outside by the door.

That assault came after you struck her?

I did not strike her.

You pulled her and tried to drag her away?
I didn’t drag her.

Well, pulled her? Ace Ehathiseriehie
Then you say Miss Penland disappeared ?
She didn’t disappear. I saw her at the back
stairway when I turned around.

@. You saw her at the back stairway when you
turned around ? A. Yes.

@. You never bothered about chasing after her?

A. No.

OPpOpope

POOPOo POD

The Territory of Hawau 291

(Testimony of Edward J. Burns.)
Q. You were so anxious to open the door and
let the police officers in to carry out your plan?
eee ihnat is cenit,
Q. Did you open the door or did you not open
the door? A. I opened the door.
Q. Definitely, you are sure of it?
J SESE
Q. Are you positive? ‘A. Positive.
Q. You opened the door and Caminos came in?
A. Yes. [251]
Q. This morning you testified about stepping

A. I didn’t step back to let her do that.

Q. What did you step back for?

A. To let Caminos in.

Q. To let Caminos see you?

A. To let Caminos in.

Q. You say Mrs. Warren stepped up to the
door?

A. She crossed over to the side, to the lefthand
side of the door as we were facing it.

Q. In other words, you want this jury to un-
derstand by your testimony when you got here
(indicating on Ex. ‘‘K”’), fighting with Miss Pen-
land, after you had pushed Mrs. Warren aside in
this bedroom, when you ran out here and caught
Miss Penland here (indicating on Ex. ‘‘K’’) and
erabbed hold of her and then looked toward the
door, you saw Mrs. Warren standing inside the
door? A. Standing there, yes.

292 Ilene Warren vs.

(Testimony of Edward J. Burns.)

@. With her lefthand up something lke that

(demonstrating) ?

Not quite so high.

Like that (demonstrating) ?

A little lower.

About like that (demonstrating) ?

Something like that.

Then you said she was pulling a string or
something ? A. I didn’t say she was.

Q. A pulling motion?

A. A pulling motion, yes.

@. Then you also want the jury to understand
that [252] you reached for the door?

A. Not immediately. I wanted to get at the
door.

@. You wanted to get at the door. Then after
you finally got at the door or while you were facing
there at the door, Mrs. Warren had moved over to
this side (indicating on Ex. ‘“‘K’’) and you had
gotten over to that side (indicating) ?

A. I had pulled her over to that side.

Q. You grabbed the door knob? A. Yes.

Q. You get any electric shock? Bo ING,

Q. Then you say you stepped aside and let Mrs.
Warren step in front again? That is what you
said this morning. A. I stepped aside.

@. Do you recall what you said the other day?

A. I don’t believe I went into quite so much

detail.

O>Ooro>

The Territory of Hawai 293

(Testimony of Edward J. Burns. )

Q. I see. Do you recall testifying along this
line: (Reading) ‘‘I then grabbed’’—page 6, middle
of the page—‘‘I then grabbed her and attempted
to pull her away from the door so that TI might
open it. She grabbed hold of me and I released
Miss Penland to cope with ‘‘Speed’”’. ‘Speed’
again turned to the door and | turned around to
see where the Penland woman had gone. I believe
that she was out of sight, so turned back to ‘“‘Speed”’
again, who was again with her back towards me
and seemed to be fumbling at a lock or latch on
the door.’? Now, what was she fumbling about?

A. Trying to close the hasp, to lock the hasp that
was at the door. There was a little hasp by [253]
which you could lock the door from inside with a
lock, I believe.

Q. And that was a considerable time, then, after
this pounding that you heard?

A. No, not a considerable time.

Q. The first thing that you heard after you
rushed out with Miss Penland was pounding on
the door, wasn’t it?

A. No, I wouldn’t say that.

Q. You wouldn’t say that. Was it about the
time that you got out there with Miss Penland ?

A. No, you see, after I had secured Miss Pen-
land, I would say just about as I was to turn to
the door I heard the pounding sounds and Captain
Caminos say, ‘‘Open up, police officers’. I ean’t
say whether the pounding sounds came first or

294 Llene Warren vs.

(Testimony of Edward J. Burns.)
whether Captain Caminos’ voice came first or
whether they came together, just how it was.

Q. I am not talking about that. I am talking
about the pounding at the time you got out in the
hallway.

A. The pounding, as I heard it, was as I turned
toward the front door after I had secured Miss
Penland.

@. You knew the police officers were outside in
the street ? A. Yes.

@. Less than twenty-five feet from the front
door?

I don’t know if they were out in the street.
You don’t know? A. No.

Didn’t you talk it over with them? [254]
That part wasn’t stated.

Did you talk it over after the incident?

I didn’t ask them where they had stayed,
where they were.

(). And then after you opened the door, say, six
inches A. About that.

Q. (Continuing) you immediately stepped back ?

A. Yes.

Q. Quickly ? A. Yes.

Q. Caminos came right in?

A. He stepped up to the door. He might have
entered about the doorway; he didn’t come exactly
all the way in.

Mr. Young: I ask the witness be allowed to

rPOoPOOP

answer.

The Territory of Hawait 295

(Testimony of Edward J. Burns. )

Mr. Dwight: The answer is in the record.

Q. Then you say ‘‘Speed”’ was the one at the
door?

A. ‘Speed’? was right in front of the door.

Q. Have you talked to anyone about that phase
of your testimony, that particular phase of your
testimony ? A. Yes.

Q. Who did you talk to, Captain Caminos?

A. No.

Q. Were you told that Captain Caminos testified
under oath that ‘‘Speed’’ opened that door?

A. No.

Q. Did anybody inform you that Captain Ca-
minos testified under oath that ‘Speed’? opened

that door? A. No. [255]
Q. Nobody told you that? A. No.
Q. Never heard about it? A. No.

Q. Never heard anything about it like that ?

A. No.

Q. You recall testifying on the hearing here that
you went there and opened the door? You testified
along that line, you went up there, grabbed the
latch, opened the door and Captain Caminos
stepped in; you recall that ? A. Yes.

Q. Today you testified that you went up there,
opened the door six inches, stepped back so
‘“Speed’”’ could go up there ? ie ANo. |

Q. Didn’t you testify this morning that you
opened the door and you stepped back and that

296 Ilene Warren vs.

(Testimony of Edward J. Burns.)
when Caminos came in ‘‘Speed’’? wag by the door,
closer to the door than you were 2

A. We were both about the same distance from
the door. She was standing on the lefthand side
of the door; I was standing here (indicating on
Exhibit ‘‘K’’),

Q. You recall testifying this morning that when
Caminos came in Mrs. Warren was on the right,
you were on the left? A. Ido not.

Mr. Dwight: May we have the record ?

The Court: (To the Reporter) Will you refer
to that testimony? [256]

Mr. Young: The proper procedure to impeach
this witness

Mr. Dwight: The proper procedure is for me
to call the Reporter for the record.

The Court: You are not calling for it now?

Mr. Dwight: I am perfectly willing to pass it
for the time being.

The Court: All right pass it for the time being.

(The Reporter later read the excerpt from
the record to both counsel in chambers, as
quoted on pages 263 and 264 of this Tran-
script. )

By Mr. Dwight:

Q. When did you first know that the woman
was Marjorie Scott? When did you first learn of
her name ?

A. I don’t recall the exact date but I believe I
asked Detective Quinn for her name and he gave

The Territory of Hawai 297

(Testimony of Edward J. Burns.)
it to me the next morning while I was writing my
report.

Q. Do you recall testifying on the 29th of Janu-
ary if Marjorie Scott ever came in after the whistle
was blown ?

A. I don’t recall whether I testified Marjorie
Seott came in after the whistle was blown. I tes-
tified to the fact she came to the door after the
whistle was blown.

Q. You recall that you did not testify to Mar-
jorie Scott coming in after the whistle was blown?

A. I ean state definitely.

Q. Now, you say that you spoke to Mr. Young
in connection with that particular phase of the tes-
timony that I have been referring to?

A. Yes. You mean about in the hallway there?

[257 |

Cynics. A. That is right.

Q. When did you talk to him?

A. TI don’t recall now whether it was before the
dismissal or after, or after the case of dismissal.

Q. Was it after you had testified here?

A. I believe so. That is right; it was after-
wards.

Q. And in that conversation with Mr. Young
was Caminos’ testimony discussed ?

Ae Woyesir:

Q. Wasn’t discussed ? A. No.

298 Ilene Warren vs.

(Testimony of Edward J. Burns.)

@. My. Young never said a word to you about
Caminos testifying that he said ‘“Speed’’ opened
the door? A. No.

Q. But you do admit that you discussed that
particular phase of the testimony with Mr. Young
subsequent to January 29th? A. Yes.

@. Now when you first had your struggle with
Mrs. Warren in the bedroom, you say that that
lasted for about five seconds?

A. About that.

Q@. And in that struggle Miss Penland got
away ?

A. At the termination, just before the termina-
tion of the struggle.

(. Just before the termination of the struggle.
In other words, when Miss Penland went out you
threw ‘‘Speed’’ aside 2

A. I twisted my arms loose. [258]

@. You caught up as she entered the alleyway ?

A. She entered the hallway already.

Q. When you grabbed her? A. Yes.

Q. Now, when the front door was finally opened,
did you get up there and hold your hands up and
say, ‘‘Boys, I am balls naked’’? A. No.

Q. You didn’t have any uniform on or anything
like that police station uniform? A. No.

@. You did not have your badge exposed where
people could see it?

A. You mean when I entered the house ?

Q. Yes. A. No.

The Territory of Hawai 299

(Testimony of Edward J. Burns.)

Q. Or at any time?

A. Not until I put Miss Penland under arrest.

Mr. Dwight: That is all, your Honor, with the
exception of further eross-examination, which I
will ask the Reporter to check up during the inter-
mission for a recess and I ask that I be permitted
to recall this witness for further eross-examination
at that time. ;

The Court: Any redirect at this time?

Mr. Young: Yes.

Redirect Examination
By Mr. Young:

Q. Mr. Burns, will you give us some idea, from
your best recollection, the dimensions of this hall-
way (indicating on Exhibit ‘K’’) ? [259 |

A. (Referring to Ex. ‘‘K’’ and indicating) ‘That
was about five feet wide and seven feet long; the
length, from the front of the door to the stair-
way.

Q. What do you call the length? Will you come
down here and indicate?

A. (Stepping down and indicating on Ex. ‘‘K’’)
Seven feet from the front door to here (indicating )
and about five feet to the foot of the stairway and
about five feet from the outside wall of the house
to this doorway here (indicating).

Q. Indicating the doorway connected to the
stairs going up? A. Yes.

Q. Now, approximately what is your best judg-
ment of the distance from this door, the front door

300 Ilene Warren vs.

(Testimony of Edward J. Burns.)
of the bedroom that you were in, to the beginning
of the hallway, the number of feet?

A. About 18 feet, sir.

(). About 18 feet. Take the stand. Would you
know this fellow Erpelding? If you saw him,
would you? A. Yes, sir.

Mr. Young: Call Erpelding.

(The bailiff responds, bringing into the
court-room a gentleman. )

Q. You see this man here (indicating: the same

person) ? A. Yes.
@. Is he one of the men that you saw in the
room, in the parlor ? A. Yes.

Q. What position was this man in the room
when you [260] saw him?

A. He was seated on this chair over here (aindi-
cating on Ex, K’’),

Q. That is the chair?

Mr. Dwight: Just amoment. I ask the witnesses
be excluded while this testimony is golng on.

Mr. Young: Withdraw that last question.

The Court: No question will be asked in the
presence of the witnesses.

By Mr. Young:
Q. He is the man that you testified to? (Refer-
ring to the same person. ) A. Yes.

@. (To the same person) What is your name?
A. Erpelding.

The Territory of Hawai 301

(Testimony of Edward J. Burns.)

Mr. Young: May the record show the identifica-
tion of Erpelding ?

The Court: The record may so show.

By Mr. Young:

Q. You say that man was there at this point
(indicating on Ex. ‘‘K’’) when you saw him?

Ae Ves, tat is right. |

Mr. Young: Indicating the front part of the
parlor, facing the front door.

The Court: Just wait until after 11 0’clock.

Mr. Dwight: I will take it up then.

Mr. Young: I would just as soon if counsel
wishes. May we have our 11 o’clock recess? I
would just as soon have counsel continue with his
cross examination before I start with another wit-
ness.

The Court: The Court will stand in recess. [261]

(A brief recess was taken.)

In Chambers.

(Both counsel being present in chambers,
and the defendant also being present, the
following proceedings were had and tes-
timony given) :

Mr. Dwight: At this time I would like to move
for a continuance upon the ground the defendant
is ill. She is now suffering with cramps of a serious
nature. She doesn’t feel she will be able to stick it
out for the remainder of the afternoon.

The Court: Will you swear her?

302 Ilene Warren vs.
ILENE WARREN ,

called as a witness on her own behalf, being’ first
duly sworn, testified as follows:
Direct Examination

By Mr. Dwight:

@. Your name is Ilene Warren?

A. Yes, sir.

@. You are the defendant in this case?

A. Yes.

@. At the present time you are having your

periods, are you not? A. Yes.
@. Accompanying those periods are you suffer-
ing from cramps? A. Yes, sir.

@. Those cramps are of a rather serious nature?

A. Yes, sir.

@. You feel that you can’t continue sitting in
Court for your own health? [262] A. Yes.

@. You feel it is for your own health that this
matter be continued until tomorrow morning ?

A. Yes.

Mr. Young: The Territory has no objection.

The Court: Let the record show the Territory
has no objection and the Court will continue this
case until tomorrow morning at nine o’clock.

(The reporter read as follows from the Di-
rect Examination by Mr. Young of Wit-
ness Edward J. Burns):

“Q. What happened while the three of you
were there in the hallway? Will you tell us

The Territory of Hawai 303

what happened from that point on, if any-
thing ?

A. Yes, after I secured Miss Penland and
I heard the pounding sounds on the door, heard
Captain Caminos’ voice, ‘Open up, ‘Speed’,
police officers,’’ I turned to the front doorway.
‘Speed’ Warren was standing at the doorway
on my lefthand with her back towards me, her
left arm was reaching inside the doorway lead-
ing upstairs with her hand behind the casing,
so that I could not see it. She gave a down-
ward motion of that hand, resembling some-
one pulling a light cord. I then reached for her
to pull her away from the door to open the
door. She grabbed hold of my arm. In the
mix-up Billie Penland got away. IT turned
around—before turning around I told ‘Speed’
Warren that I was a police officer; that she was
under arrest for assault and battery in this
case. I turned around to see where Miss Pen-
land had gone and I believe I saw her running
—JT saw her running up the back stairs. I
turned around again to open up the front door
and ‘Speed’ was at the front door, trying to
lock it. I [263] I pulled her away from the
front door and opened it about six inches. Cap-
tain Caminos was the first one to come in the
doorway.

Q. At the time that the door opened, who
was closer to the front door, you or ‘‘Speed’”?

304 Ilene Warren vs.

A. We were both about the same distance
from the front door, sir.

@. Who was the closest to the door leading
up on the righthand, going up the stairs?

A. At the time I opened the front door T
was.

Q. Here’s the front door here (indicating
on Ex. ‘‘K’’); who was closest to this stair-
way at the time the front door opened?

A. I was.”

In Court.
EDWARD J. BURN Sy

a witness called on behalf of the defendant, resumed
the stand and testified further as follows:

Cross Examination

(Continued )
By Mr. Dwight:

@. Now, Mr. Burns, the record here indicates
from your questions and answers that when you
first saw Mrs. Warren she was on the left of the
door, then you further testified that you pulled
Mrs. Warren away and you went to the door?

The Court: To the left.

By Mr. Dwight:

Q. To the left of the door, then you said you
opened the door. Then you testified that when the
door was opened Mrs. Warren was on the left. That
is what the record shows. [264]

The Territory of Hawai 305

(Testimony of Edward J. Burns. )

A. JT testified that I walked back and she walked
over to the left.

Q. You stepped back and then she stepped over
to the door. In other words, you just stepped back
and she crossed over?

A. She was standing on my righthand side and
she crossed over.

Q. After the door was opened you say Caminos
stepped in? A. Captain Caminos, yes.

Q. And what did he do?

A. He started to talk with ‘‘Speed’’ Warren.
IT don’t know what he said. I went back in the
hallway. I intended

Q. Never mind what you intended. Tell us what
you did.

A. ZI went back in the hallway. I was going to
look for Billie Penland.

Q. When you say the hallway, you mean this
square in here (indicating on Ex. OTRO

eelpatas weit.

Q. What did you do?

A. TI looked at the back stairs, the stairway. I
looked into the parlor.

Q. Did you go into the parlor?

A. I might have looked. I came back in the
hallway; ‘‘Speed’’? Warren went up the back staurs ;
Captain Caminos went out the front door. |

Q. You followed Captain Caminos out?

306 Llene Warren vs.

(Testimony of Edward J. Burns.)
A. Not directly. I followed a few seconds later.
@. Do you recall testifying in that regard on
January [265] 29th?
A. I testified somewhat, something similar to
that. I don’t recall.
Q. With slight defects? A. No, sir.
@. Let me put it to you. I think this is your
testimony, page 6 (reading from Transcript) :
‘“Captain Caminos entered the hallway and
I left the hallway and went into the parlor a
few steps, looked up the back stairway, couldn’t
see the Penland woman, came back into the
hallway and followed Captain Caminos outside
of the front door.’’

Ay That is ment,

Q. That is your testimony and when you fol-
lowed him out

A. When I got outside he was holding Wah
Choon Lee.

Q. You followed him out and when you got out
there Captain Caminos was holding Wah Choon
Lee?

A. I stated a few seconds; I followed him a few
seconds later.

Q. That is what I am getting to. Have you dis-
cussed that phase of your testimony since you tes-
tified on January 29th?

A. No, sir, we discussed the whole incident but
we never discussed that particularly.

The Territory of Hawai 307

(Testimony of Edward J. Burns. )

Q. In other words, you testified you followed
him out and he told you to go back and put some
clothes on? A. That is right.

Q. That is what you testified to before ?

A. That is right. [266]

Q. When you followed him out and got out
there, he was holding someone by the armpits?

A. He was holding Wah Choon.

Q. That was on the premises of Mrs. Warren?

A. That is right.

Mr. Dwight: I think that is all.

Redirect Examination
By Mr. Young:

Q. Officer Burns, there has been some testimony
in this regard, whether you were to the right or
left. Will you go over to the board again and show
what position you took on the stairway at the time
she was at the door, facing out?

Mr. Dwight: He can testify if there has been
any misunderstanding about what he meant by right
and by left.

Mr. Young: Counsel brought this out on cross.
T think this witness has a right to show.

The Court: I believe the evidence is clear.

Mr. Young: Counsel went into that.

The Court: The Court will allow the question.

Mr. Dwight: May I save an exception ?

The Court: If the prosecution feels he isn’t
clear, he has a right to on redirect.

308 Ilene Warren vs.

(Testimony of Edward J. Burns. )
Mr. Dwight: Any other testimony, I submit, he
can’t bring in now. It is improper.

By Mr. Young:

Q. When you testified, tell whether it is on the
right or left, whatever day it was.

The Court: Just clear up the question. [267]

A. When I chased Billie Penland into the hall-
way, she first turned towards the front door, then
she turned back to this stairway and I caught her
just about here Cindicating on Ex. “K’”’). I was
standing with my back this way (demonstrating).

The Court: Indicating what?

A. Back this way; the back of my body would
be towards this doorway (indicating).

Q. Which doorway?

A. The doorway leading into the living room.
She was standing about here on my righthand side
and in front of me (indicating on Ex, “K’’), After
I secured a good hold of her our positions did not
change much while I was securing a hold on her.
I turned to the front door, the left of my body and
my back was here (indicating on Ex, Ae) vill
turned to the front door in this space (indicating).
‘Speed’? Warren was standing here (indicating).

The Court: You say ‘‘here’’, indicating what ?

A. She was standing at the foot of the stair-
Way.

The Territory of Hawai 309

(Testimony of Edward J. Burns.)

By Mr. Young:

Q. Which stairway ?

A. Stairway leading from the hallway to a room
upstairs, which stairway is next to the front door.
She was standing next to that front door, also
facing it and looking out.

The Court: To the right or left of the front
door?

Mr. Dwight: To the left of the front door.

The Court: To the left of the front door? [268]

A. To the left of the front door, looking out,
and I grabbed her; she turned towards me. I was
then facing the front door and her back was to-
wards it. When I released my hold on her and she
turned towards the door, J turned to this back
stairs and I saw Billie Penland go up and I again
turned toward the front door. ‘‘Speed”’ Warren’s
back was again towards me. She was attempting
to close the hasp and lock it. She again turned to-
ward me.

Recross Examination

By Mr. Dwight:

Q. About here (indicating on Ex. Te’) 7

A. About here (indicating on Ex. ‘le ).. Lawes
then standing here (indicating), facing the front
door, grabbed the lock, opened it, shoved it out-
wards. I stepped back a few steps and Mrs. War-
ren crossed over in front of me to this spot again

(indicating ).

310 Ilene Warren vs.

(Testimony of Edward J. Burns.)

The Court: Indicating the left.

A. On the lefthand side of the front door ag we
faced it, and Captain Caminos then entered.

By Mr. Dwight:

Q. While you were here you said that Billie
Penland started toward the front door?

A. That is right.

@. Where were you when she started toward
the front door?

A. About here (indicating on Ex, NS’), about
two or three feet away.

Q. In the parlor? A. Yes.

@. How far did she go toward the front door?

A. She took a step toward the front door, then
hesitated, [269] then turned around with her back
toward the front door and then went up the stairs.

Q. When did you first hear of the hasp on that
door ? Bee lisa

@. You saw it, this little hasp? A. Yes.

@. You don’t know where Mrs. Warren came
from, but you could still see the hasp out at the
front door. You can’t tell this jury how Mrs. War-

ren got to the front door? A. No.
@. This room is seven by five? (Indicating on
Hie Ke), A. Yes.

Q. And you didn’t see her?

A. No, I was engaged with Miss Penland.

Mr. Dwight: No further questions.

The Court: That is all; Officer Burns excused.
[270]